Laserfiche WebLink
Optionor shall indemnify, hold harmless, and defend Optionee and its officers, directors, <br />employees, agents, affiliates, successors and permitted assigns (collectively, " Optionee <br />Indemnified Party ") against any and all losses, damages, liabilities, deficiencies, claims, <br />actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever <br />kind, including reasonable attorneys' fees, that are incurred by an Optionee Indemnified Party <br />(collectively, " Optionee Losses "), arising out of any claim alleging, (i) any breach or non- <br />fulfillment of any covenant or any negligent or more culpable act or omission of Optionee or its <br />personnel (including any reckless or willful misconduct) in connection with this Agreement; (ii) <br />any false representation of Optionor under this Agreement; (iii) the existence of any <br />Environmental Conditions upon the Property or obligations related to such Environmental <br />Conditions accruing prior to the Closing under the Disposition Agreement; or (iv) any claim for <br />payment of Commissions to any other person or entity claiming by, through or under Optionor. <br />Payments by Optionor under this Section in respect of any Optionee Losses are limited to the <br />amount of any liability or damage that remains after deducting therefrom any insurance proceeds <br />and any indemnity, contribution or other similar payment actually received by any Optionee <br />Indemnified Party in respect of any such indemnity claim. Any Optionee Indemnified Party shall <br />use its best efforts to seek to recover any insurance proceeds in connection with malting a claim <br />under this Section. Promptly after the realization of any insurance proceeds, indemnity, <br />contribution or other similar payment, any Optionee Indemnified Party shall reimburse Optionor <br />for such reduction in Optionee Losses for which any Optionee Indemnified Party was paid under <br />this Section before the realization of reduction of such Optionee Losses. Notwithstanding <br />anything to the contrary in this Agreement, Optionor is not obligated to indemnify, hold harmless <br />or defend any Optionee Indemnified Party against any claim (whether direct or indirect) if such <br />claim or corresponding Optionee Losses arise out of or result from Optionee Indemnified Party's: <br />(a) gross negligence or more culpable act or omission (including recklessness or willful <br />misconduct); or (b) bad faith failure to materially comply with any of its material obligations set <br />forth in this Agreement. Any Optionee Indemnified Party shall give Optionor a prompt Claim <br />Notice of any Optionee Losses or discovery of facts on which such Optionee Indemnified Party <br />intends to base a request for indemnification under this Section. Any Optionee Indemnified <br />Party's failure to provide a Claim Notice to Optionor under this Section does not relieve Optionor <br />of any liability that Optionor may have to any Optionee Indemnified Party, but in no event shall <br />Optionor be liable for any Optionee Losses that result from a delay in providing a Claim Notice. <br />Each Clain Notice must contain a description of the claim and the nature and amount of the <br />related Optionee Losses (to the extent that the nature and amount of the Optionee Losses are <br />known at the time). Optionee shall furnish promptly to Optionor copies of all papers and official <br />documents received in respect of any Optionee Losses. Optionor's duty to defend applies <br />ininediately, regardless of whether Optionee Indemnified Party has paid any sums or incurred <br />any detriment arising out of or relating, directly or indirectly, to any claim. Optionor may <br />assume, at its sole option, control of the defense, appeal or settlement of any claim that is <br />reasonably likely to give rise to an indemnification claim under this Section (an " Optionor <br />Indemnified Claim ") by sending written notice of the assumption to Optionee on or before <br />thirty (30) days after receipt of a Claim Notice to acknowledge responsibility for the defense of <br />such Optionor Indemnified Claim and undertake, conduct and control, through reputable <br />independent counsel of its own choosing (which Optionee shall find reasonably satisfactory) and <br />at Optionor's sole cost and expense, the settlement or defense thereof. If Optionor assumes <br />control of the defense under this Section, Optionee Indemnified Party (a) shall fully cooperate <br />16 <br />51528687.8 25A -18 <br />