Seller Indemnity 40.1 (a) For a period commencing on the Effective Date and following the Closing for a period of time ending on December 31, 2008, Seller and CBRE Realty Finance, Inc., a Delaware corporation (“Pavilion Indemnitor”, and together with Seller, the “Seller Indemnitors”) shall jointly and severally indemnify, defend (with counsel acceptable to Purchaser) and hold Purchaser and its respective direct and indirect members, managers, partners, officers, directors, shareholders, employees, affiliates and their respective successors and assigns, including, without limitation, the Existing Loan Purchaser (collectively, the “Purchaser Indemnified Parties”), harmless from and against any and all liquidated liabilities (including, without limitation, attorneys’ fees and litigation costs) (collectively “Losses”) which any Purchaser Indemnified Party incurs arising out of or resulting from: (i) any matter or thing pertaining to the ownership or operation of the Property prior to the Closing Date; (ii) any liabilities and any litigation, action or proceeding pertaining to the ownership or operation of the Property or otherwise relating to the Existing Loan (to the extent not covered by the release by Purchaser of Seller pursuant to the Assumption and Release Agreement) or the mezzanine financing provided by Seller’s affiliates in respect of the Property, in each case relating to actions or events occurring prior to the Closing Date; (iii) Seller’s violation of Section 10.1(p) hereof; (iv) Seller’s default under this Agreement beyond any applicable notice and grace periods, due to matters solely within Seller’s control; or (v) Seller’s failure to consummate the Closing and/or any Seller Indemnitor’s hindrance of the Closing or the consummation of the Existing Loan Acquisition Transaction, in each case, due to matters solely within Seller’s control; provided, however, the foregoing indemnity shall not be applicable to (x) Losses incurred as a result of the exercise by a party entitled to exercise a right of first refusal to purchase the Property under Chapters 11 or 53A of the County Code, (y) Losses resulting from the failure of the Closing to occur because Purchaser is in default under this Agreement beyond any applicable notice or grace periods; or (z) Losses related to the Outstanding Trade Payables, to the extent that such Losses are less than the Maximum Trade Payables Exposure.
Buyer Indemnity Buyer will, at its expense, indemnify, defend and hold harmless Licensor and its Affiliates and their respective officers, directors, employees, agents and representatives (collectively “Licensor Indemnified Parties”) from and against any and all claims, actions, proceedings and suits brought by a third party, and any and all liabilities, losses, damages, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) (“Claims”) to the extent arising out of or relating to an allegation of any of the following: (a) infringement, misappropriation or violation of any Proprietary Rights by the Buyer Materials or Buyer Data or Licensor’s use thereof as permitted under this Agreement; and (b) any unauthorized or unlawful receipt, processing, transmission or storage of Buyer Data by Licensor in the performance of its obligations as permitted under this Agreement resulting from breach of Buyer’s obligations under Section 7.2.2.
Seller’s Indemnity Notwithstanding the Closing and regardless of any investigation made at any time by or on behalf of Buyer or any information Buyer may have, Seller shall indemnify and hold Buyer, its respective affiliates, officers, directors, employees, agents, and representatives, and any Person claiming by or through any of them, as the case may be (each a "Buyer Indemnified Person"), harmless from and against any Losses arising out of or resulting from any of the following, provided that a claim for indemnity with respect -44- 50 to such Losses, specifying such claim in reasonable detail, has been delivered to Seller by Buyer before the date eighteen months after the Closing Date unless a longer survival period is specified in Section 9.1, in which case the end of such applicable survival period:
(i) all refund liabilities due to subscribers for periods prior to the Closing that arise in connection with Rate Regulatory Matters or Rate Regulatory Reduction Orders;
(ii) the business or operations of the System prior to the Closing Date (except for Assumed Liabilities for which an adjustment has been made at Closing and Permitted Liens), any failure by Seller to pay, perform or discharge any liabilities or obligations of Seller or the System not expressly assumed by Buyer pursuant to Section 2.8.1 hereof, and all claims and demands made in respect of any of the foregoing whether or not known or asserted at or prior to the Closing;
(iii) any misrepresentation, breach of warranty, or nonfulfillment of any agreement or covenant on the part of Seller under this Agreement or any Transaction Document;
(iv) the Litigation described in SCHEDULE 3.7 hereto; and
(v) any claim by the City of Huntsville or any other Person that, contrary to Paragraph 7 of the Huntsville Resolution, Buyer or any of its successors or assigns is required or alleged to be required to pay any franchise fees to the City of Huntsville for any period prior to the expiration of the City of Huntsville Franchise. provided, however, that the Seller shall not be liable under Section 9.2(iii) in respect of Losses unless the aggregate of such Losses exceeds Two Hundred Thousand Dollars ($200,000) in which case the Seller will be liable for all such Losses up to a maximum aggregate amount of Fifteen Million Dollars ($15,000,000). Seller will be liable, in the aggregate, for all Losses under this Section 9.2 up to a maximum amount of Sixty Five Million Dollars ($65,000,000); provided, however, that such limitations and qualifications shall not apply in the case of Losses resulting from or arising out of the Seller's breach of its obligations under Sections 2.6.2, 2.10 and 2.13, Section 5.5, Section 12 and Section 13.4 hereof.
Purchaser Indemnity In consideration of the Company's execution and delivery of this Agreement and issuing the Common Shares hereunder and in addition to all of the Purchaser's other obligations under the Transaction Documents, the Purchaser shall defend, protect, indemnify and hold harmless the Company and all of its officers, directors and employees (collectively, the "Indemnitees") from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including all reasonable attorneys' fees and disbursements of one law firm (and local counsel where necessary) (the "Indemnified Liabilities"), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Purchaser in the Transaction Documents or any other certificate or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Purchaser contained in the Transaction Documents or any other certificate or document contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party and arising out of or resulting from the execution, delivery, performance or breach by the Purchaser or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, and (d) the enforcement of this Section. Notwithstanding the foregoing, Indemnified Liabilities shall not include any liability of any Indemnitee arising solely out of such Indemnitee's willful misconduct or fraudulent action(s). To the extent that the foregoing undertaking by the Purchaser may be unenforceable for any reason, the Purchaser shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
Seller Indemnification (a) The Seller agrees to indemnify and hold harmless Purchaser against any and all Damages. “Damages,” as used herein, shall include any claim, action, demand, loss, cost, expense, liability (joint or several), penalty and other damage, including, without limitation, reasonable counsel fees and other costs and expenses reasonably incurred in investigation or in attempting to avoid the same or oppose the imposition thereof or in enforcing this indemnity, resulting to Purchaser from (i) any inaccurate representation made by or on behalf of The Seller or the Company in this Agreement or any certificate or other document referenced in, this Agreement and delivered pursuant hereto, (ii) the breach of any of the warranties or agreements made by or on behalf of the Seller or the Company in this Agreement or any certificate or other document referenced in this Agreement and delivered pursuant hereto, or (iii) the breach or default in the performance by the Seller of any of the obligations to be performed hereunder. The Seller agrees to pay or reimburse the Purchaser for any payment made or amount payable or loss suffered or incurred by the Purchaser at any time from and after the Closing in respect of any Damages to which the foregoing indemnity relates.
(b) If any claim shall be asserted against Purchaser by a third party for which Purchaser intends to seek indemnification from the Seller under this Section, Purchaser shall given written notice to the Seller of the nature of the claim asserted within forty-five (45) days after any executive officer of Purchaser learns of the assertion thereof and determines that the Purchaser may have a right of indemnification with respect thereto, but the failure to give this notice will not relieve the Seller of any liability hereunder in respect of this claim. The Purchaser shall have the exclusive right to conduct, through counsel of its own choosing, which counsel is approved by the Seller (which approval may not be unreasonably withheld), the defense of any such claim or action, and may compromise or settle such claims or actions with the prior consent of the Seller (which shall not be unreasonably withheld).
Purchaser Indemnification 3.4.1 Purchaser shall indemnify, hold harmless and, if requested by a Seller (in such Seller’s sole discretion), defend (with counsel reasonably approved by such Seller) such Seller, together with such Seller’s affiliates, parent and subsidiary entities, successors, assigns, partners, managers, members, employees, officers, directors, trustees, shareholders, counsel, representatives, agents, Property Manager, Regional Property Manager, and AIMCO (collectively, including such Seller, “Seller’s Indemnified Parties”), from and against any and all damages, mechanics’ liens, materialmen’s liens, liabilities, penalties, interest, losses, demands, actions, causes of action, claims, costs and expenses (including reasonable attorneys’ fees, including the cost of in-house counsel and appeals) (collectively, “Losses”) arising from or related to Purchaser’s or its Consultants’ entry onto such Seller’s Property, and any Inspections or other acts by Purchaser or Purchaser’s Consultants with respect to such Property during the Feasibility Period or otherwise; provided, however, such indemnity shall not cover any Loss to the extent arising from Seller’s Indemnified Parties’ negligence or willful misconduct or any preexisting latent physical or environmental conditions discovered by Purchaser in connection with its investigations as long as Purchaser immediately ceases its investigations upon discovering such latent condition and takes reasonable steps not to exacerbate such condition.
3.4.2 Notwithstanding anything in this Contract to the contrary, Purchaser shall not be permitted to perform any invasive tests on any Property without Sellers’ Representative’s prior written consent, which consent may be withheld in Sellers’ Representative’s sole discretion. Further, Sellers’ Representative shall have the right, without limitation, to disapprove any and all entries, surveys, tests (including, without limitation, a Phase II environmental study of its Property), investigations and other matters that in such Sellers’ Representative’s reasonable judgment could result in any injury to its Property or breach of any contract, or expose the applicable Seller to any Losses or violation of applicable law, or otherwise adversely affect such Property or such Seller’s interest therein; provided, however, each Seller hereby expressly consents to Purchaser's performance of a Phase I environmental study of the applicable Property (to be conducted by an environmental engineer reasonably acceptable to Seller's Representative) and an ACM (asbestos containing material) study (to be conducted by an environmental engineer reasonably acceptable to Seller's Representative) in connection therewith, but only to the extent customarily performed in connection with a Phase I environmental study; and, provided, further, however, if the Phase I for any Property concludes that a Phase II is recommended, but the applicable Seller refuses permission for such Phase II (in such Seller's sole and absolute discretion), Purchaser may terminate this Contract pursuant to Section 3.2 prior to the expiration of the Feasibility Period. Purchaser shall use reasonable efforts to minimize disruption to Tenants in connection with Purchaser’s or its Consultants’ activities pursuant to this Section. No consent by Sellers’ Representative to any such activity shall be deemed to constitute a waiver by the applicable Seller or assumption of liability or risk by such Seller. Purchaser hereby agrees to restore, at Purchaser’s sole cost and expense, each Property substantially to the same condition existing immediately prior to Purchaser’s exercise of its rights pursuant to this Article III. Purchaser shall maintain and cause its third party consultants to maintain (a) casualty insurance and commercial general liability insurance with coverages of not less than One Million Dollars ($1,000,000.00) for injury or death to any one person and Three Million Dollars ($3,000,000.00) for injury or death to more than one person and One Million Dollars ($1,000,000.00) with respect to property damage, and (b) worker’s compensation insurance for all of their respective employees in accordance with the law of the state(s) or commonwealth(s) in which the Properties are located. Purchaser shall deliver proof of the insurance coverage required pursuant to this Section 3.4.2 to Sellers’ Representative (in the form of a certificate of insurance) prior to Purchaser’s or Purchaser’s Consultants’ entry onto any of the Properties.
IPR Indemnity 23.2.1 The Supplier shall ensure and procure that the availability, provision and use of the Goods and/or Services and the performance of the Supplier's responsibilities and obligations hereunder shall not infringe any Intellectual Property Rights of any third party.
23.2.2 The Supplier shall at all times during and after the Framework Period, on written demand indemnify the Authority against all Losses incurred by, or awarded against the Authority (whether before or after the making of the demand pursuant to the indemnity hereunder) arising from an IPR Claim.
23.2.3 If an IPR Claim is made, or the Supplier anticipates that an IPR Claim might be made, the Supplier may, at its own expense and sole option, either:
(a) procure for the Authority the right to continue using the relevant item which is subject to the IPR Claim; or
(b) replace or modify the relevant item with non-infringing substitutes provided that:
(i) the performance and functionality of the replaced or modified item is at least equivalent to the performance and functionality of the original item;
(ii) the replaced or modified item does not have an adverse effect on any other Goods and/or Services;
(iii) there is no additional cost to the Authority; and
(iv) the terms and conditions of this Framework Agreement shall apply to the replaced or modified Goods and/or Services.
23.2.4 If the Supplier elects to procure a licence in accordance with Clause 23.2.3(a) or to modify or replace an item pursuant to Clause 23.2.3(b), but this has not avoided or resolved the IPR Claim, then:
(a) the Authority may terminate this Framework Agreement by written notice with immediate effect; and
(b) without prejudice to the indemnity set out in Clause 23.2.2, the Supplier shall be liable for all reasonable and unavoidable costs of the modified or substitute items and/or services including the additional costs of procuring, implementing and maintaining the substitute items.
Company Indemnity The Company will indemnify and hold harmless each Holder, each of its officers, directors, agents and partners, and each person controlling each of the foregoing, within the meaning of Section 15 of the Securities Act and the rules and regulations thereunder with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who controls, within the meaning of Section 15 of the Securities Act and the rules and regulations thereunder, any underwriter, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, or any violation by the Company of the Securities Act or any state securities law or in either case, any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse each Holder, each of its officers, directors, agents and partners, and each person controlling each of the foregoing, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending any such claim, loss, damage, liability or action, provided that the Company will not be liable in any such case to a Holder to the extent that any such claim, loss, damage, liability or expense arises out of or is based (i) on any untrue statement or omission based upon written information furnished to the Company by a Holder or the underwriter (if any) therefore, (ii) the failure of a Holder to deliver at or prior to the written confirmation of sale, the most recent prospectus, as amended or supplemented or (iii) the failure of a Holder otherwise to comply with this Agreement. The indemnity agreement contained in this Section 5.6(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent will not be unreasonably withheld).
Seller’s Indemnification Except as otherwise stated in this Agreement, after recording, the Buyer shall accept the Property AS IS, WHERE IS, with all defects, latent or otherwise. Neither Seller nor their licensed real estate agent(s) or any other agent(s) of the Seller, shall be bound to any representation or warranty of any kind relating in any way to the Property or its condition, quality or quantity, except as specifically set forth in this Agreement or any property disclosure, which contains representations of the Seller only, and which is based upon the best of the Seller’s personal knowledge.
Buyer Indemnification Buyer agrees to indemnify and hold Seller harmless from any and all claims, damages and liabilities arising from Buyer' breach of their representations and warranties set forth in this Agreement.