Indemnification of the Purchaser Subject to the provisions of this Section 4.6, SMSA will indemnify and hold the Purchaser and his representatives and agents (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by SMSA in this Agreement or in the other Transaction Documents or (b) any action instituted against Purchaser in any capacity, or any of them or their respective Affiliates, by any stockholder of SMSA who is not an Affiliate of Purchaser, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is pleaded with particularity as follows and based upon a breach of Purchaser’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings Purchaser may have with any such stockholder or any violations by Purchaser of state or federal securities laws or any conduct by Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, Purchaser Party shall promptly notify SMSA in writing, and SMSA shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by SMSA in writing, (ii) SMSA has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of SMSA and the position of such Purchaser Party, in which case SMSA shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. SMSA will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without SMSA’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents.
Indemnitee’s Entitlement to Indemnification In making any Standard of Conduct Determination, the person or persons making such determination shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification, and the Company shall have the burden of proof to overcome that presumption and establish that Indemnitee is not so entitled. Any Standard of Conduct Determination that is adverse to Indemnitee may be challenged by the Indemnitee in the Delaware Court. No determination by the Company (including by its directors or any Independent Counsel) that Indemnitee has not satisfied any applicable standard of conduct may be used as a defense to any legal proceedings brought by Indemnitee to secure indemnification or reimbursement or advance payment of Expenses by the Company hereunder or create a presumption that Indemnitee has not met any applicable standard of conduct.
Indemnified Party If a Party is entitled to indemnification under this Article 18 as a result of a claim by a third party, and the indemnifying Party fails, after notice and reasonable opportunity to proceed under Article 18.1.3, to assume the defense of such claim, such Indemnified Party may at the expense of the Indemnifying Party contest, settle or consent to the entry of any judgment with respect to, or pay in full, such claim.
The Indemnified Person (a) shall give the Indemnifying Party notice of the Claim promptly after becoming aware thereof (including a statement of facts known to the Indemnified Person related to the Claim and an estimate of the amount thereof); (b) prior to taking any material action with respect to a Third Party Claim, shall consult with the Indemnifying Party as to the procedure to be followed in defending, settling, or compromising the Claim; (c) shall not consent to any settlement or compromise of a Third Party Claim without the written consent of the Indemnifying Party; (d) shall permit the Indemnifying Party to assume the defense of a Third Party Claim (including, except as provided below, the compromise or settlement thereof) at the Indemnifying Party’s own cost and expense, provided, however, that the Indemnified Person shall have the right to approve the Indemnifying Party's choice of legal counsel.
Obligation to Indemnify (a) Subject to the expiration of the representations and warranties of the parties as provided in Article IX and the limitations set forth in this Article X, VFL agrees to indemnify, defend and hold harmless Purchaser and its directors, officers, employees, Affiliates and assigns from and against all claims, losses, liabilities, damages, deficiencies, costs or expenses, penalties and reasonable outside attorneys' fees and disbursements (collectively, "Losses," and individually a "Loss"), asserted against, imposed upon or incurred by them, directly or indirectly, by reason of or arising out of or in connection with any misrepresentation, breach of or failure to perform any representation, warranty, covenant, undertaking or agreement of VFL in this Agreement or any Extra Contractual Obligations arising from acts, errors or omissions by VFL or any of its officers, employees, agents or representatives (other than Purchaser and administrators, contractors or other representatives or agents selected by Purchaser); provided, however, that Purchaser (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification under this Section 10.01(a) in respect of representations and warranties in this Agreement only when the aggregate amount of all such Losses exceeds five hundred thousand dollars ($500,000.00) (the "Basket Amount"), in which case Purchaser (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification for Losses only in excess of the Basket Amount; provided further, that the Purchaser's entitlement to indemnification for claims arising under the fourth sentence of Section 3.11(c), Section 3.16, Section 3.24, Section 10.06 and Section 10.07 shall not be subject to the Basket Amount. VFL shall have no liability under this Section 10.01 if, with respect to any misrepresentation, breach or failure to perform, following the date of this Agreement and at or prior to Closing: (i) VFL provides Purchaser with written notice (which may be in the form of an exhibit to the certificate contemplated by Section 6.01) of such misrepresentation, breach or failure to perform; (ii) such notice expressly acknowledges that such misrepresentation, breach or failure to perform has caused the condition specified in the first sentence of Section 6.01 not to be satisfied and that, as a result, Purchaser has the right not to proceed to Closing; (iii) such misrepresentation, breach or failure to perform has, in fact, caused the condition specified in the first sentence of Section 6.01 not to be satisfied, and as a result, Purchaser has the right not to proceed to Closing; and (iv) Purchaser elects to waive the condition specified in the first sentence of Section 6.01 and proceed to Closing. The maximum amount for which VFL shall be liable under this Article X, other than indemnification for claims arising under the fourth sentence of Section 3.11(c), Section 3.16, Section 3.24, Section 10.06 and Section 10.07 which shall not be subject to such limitation, shall not exceed in the aggregate 100% of the Purchase Price ("Maximum Indemnification Obligation"). Required payments by any indemnifying party pursuant to this Article X shall be limited to the amount of any Loss that remains after deducting therefrom any benefit associated with the breach or occurrence constituting or giving rise to the Loss, including but not limited to: (i) any tax benefit to any indemnified party, (ii) any insurance or reinsurance proceeds recoverable by any indemnified party, and (iii) any indemnity, contribution or other similar payment recoverable by any indemnified party from any third party, in each case with respect to such Loss. The indemnified party shall use commercially reasonable efforts to collect all such insurance proceeds and indemnity, contribution and other similar payments. With respect to any breach of the representations set forth in Sections 3.09 and 3.11, "Losses" to be indemnified by VFL hereunder shall not include any losses deemed to be incurred by Purchaser as a result of any inability to market the Insurance Contracts in any jurisdiction. Further, in no event shall there be included in the calculation of any indemnified Loss any amount in respect of potential revenues, fees or other benefits incident to or potentially arising from any insurance or annuity policies or contracts other than the Insurance Contracts. With respect to any breach of the representations set forth in Section 3.24, Losses to be indemnified by VFL hereunder shall be calculated, as of July 1 of each year from 2003 to 2012, as the difference between the amount of fees and other revenue that would have been payable to Purchaser during the immediately preceding twelve month period under the Participation, Distribution and Service Related Agreements had the representations made by VFL pursuant to Section 3.24 been accurate and the amount of fees and other revenue actually payable to Purchaser under said agreements during such twelve month period (for each such twelve month period such difference shall hereinafter be referred to as the "Annual Revenue Share Losses") and the Annual Revenue Share Losses for each such twelve month period shall be paid by VFL to Purchaser not later than 30 days following such calculation; provided, however, that in no event will VFL be responsible (by indemnification or otherwise) for the Annual Revenue Share Losses for any twelve month period under any particular Participation, Distribution and Service Related Agreement that (i) relate to any time period more than ten years after the Effective Date; (ii) are the result of changes (including any terminations) occurring in accordance with the terms of any particular Participation, Distribution and Service Related Agreement in effect as of the execution of this Agreement, as modified pursuant to clause (iii) or (iv) of this sentence; (iii) are the result of changes (including any terminations) made by the Mutual Fund Payor in accordance with the terms of any such Participation, Distribution and Service Related Agreement; or (iv) are the result of changes (including any terminations) made by VFL or the Mutual Fund Payor and requested or approved by Purchaser; and provided, further, in the case of terminations effected under clauses (ii) or (iii) of this sentence, VFL shall be liable for Annual Revenue Share Losses that result from terminations that constitute a breach of the representation made in the last sentence of Section 3.24. Purchaser's right to indemnification for any breach of Section 3.16 as a result of the failure, prior to the Closing, (a) to comply with all tax withholding and information reporting requirements under the Code (and applicable regulations), or (b) of any Insurance Contract to comply with all requirements of the Code, as specified in Section 3.16, shall not be affected by Purchaser's knowledge of any such failure, whether as a result of Purchaser's due diligence process, any disclosure by VFL or otherwise. With regard to those agreements or arrangements regarding fees that are marked with an asterisk in Schedule 3.24, VFL agrees to indemnify Purchaser for any Losses arising from the termination of any such agreement or arrangement on less than 30 days' prior written notice, with such Losses being measured as revenues that are not payable for the 30 days (or applicable portion thereof) following the date of such written notice (if any).
(b) Subject to the expiration of the representations and warranties of the parties as provided in Article IX and the limitations set forth in this Article X, Purchaser agrees to indemnify, defend and hold harmless VFL and its directors, officers, employees, Affiliates and assigns from and against all Losses, asserted against, imposed upon or incurred by them, directly or indirectly, by reason of or arising out of or in connection with any misrepresentation, breach of or failure to perform any representation, warranty, covenant, undertaking or agreement of Purchaser in this Agreement or any Extra Contractual Obligations arising from acts, errors or omissions by Purchaser or any of its officers, employees, agents or representatives; provided, however, that VFL (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification under this Section 10.01(b) in respect of representations and warranties in this Agreement only when the aggregate amount of all such Losses exceeds the Basket Amount, in which case VFL (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification for Losses only in excess of the Basket Amount. Purchaser shall have no liability under this Section 10.01 if, with respect to any misrepresentation , breach or failure to perform, following the date of this Agreement and at or prior to Closing, Purchaser provides VFL with written notice (which may be in the form of an exhibit to the certificate contemplated by Section 7.01) of such misrepresentation, breach or failure to perform. In any event, the maximum amount for which Purchaser shall be liable under this Article X shall not exceed in the aggregate the Maximum Indemnification Obligation. Required payments by any indemnifying party pursuant to this Article X shall be limited to the amount of any Loss that remains after deducting therefrom any benefit associated with the breach or occurrence constituting or giving rise to the Loss, including but not limited to: (i) any tax benefit to any indemnified party, (ii) any insurance or reinsurance proceeds recoverable by any indemnified party, and (iii) any indemnity, contribution or other similar payment recoverable by any indemnified party from any third party, in each case with respect to such Loss. The indemnified party shall use commercially reasonable efforts to collect all such insurance proceeds and indemnity, contribution and other similar payments. Further, in no event shall there be included in the calculation of any indemnified Loss any amount in respect of potential revenues, fees or other benefits incident to or potentially arising from any insurance or annuity policies or contracts other than the Insurance Contracts.
(c) The same set of facts and circumstances may give rise to a claim for indemnification under this Article X as a claim arising from both a representation or warranty and from an Extra Contractual Obligation. The fact that such a claim for indemnification may be barred by the survival provisions of Article IX as arising from a representation or warranty, shall not bar VFL or Purchaser from bringing such a claim under this Article X as arising from an Extra Contractual Obligation.
Indemnification by the Purchaser Each Purchaser will severally and not jointly indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act, against any losses, claims, damages, liabilities or expenses to which the Company, each of its directors, each of its officers who signed the Registration Statement or controlling person may become subject, under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Purchaser, which consent shall not be unreasonably withheld) insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (i) any failure on the part of such Purchaser to comply with the covenants and agreements contained in Sections 5.2 or 7.2 of this Agreement respecting the sale of the Shares or (ii) the inaccuracy of any representation made by such Purchaser in this Agreement or (iii) any untrue or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement to the Registration Statement or Prospectus, or arise out of or are based upon the 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 each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Purchaser expressly for use therein; provided, however, that the Purchaser shall not be liable for any such untrue or alleged untrue statement or omission or alleged omission of which the Purchaser has delivered to the Company in writing a correction before the occurrence of the transaction from which such loss was incurred, and the Purchaser will reimburse the Company, each of its directors, each of its officers who signed the Registration Statement or controlling person for any legal and other expense reasonably incurred by the Company, each of its directors, each of its officers who signed the Registration Statement or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action.
Agreement to Indemnify (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law.
(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Indemnitee.
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.
Purchaser’s Indemnification Purchaser agrees to indemnify, hold harmless, reimburse and defend the Company and each of the Company's officers, directors, agents, affiliates, control persons and principal shareholders, at all times against any claim, cost, expense, liability, obligation, loss or damage (including reasonable legal fees) of any nature, incurred by or imposed upon the Company which results, arises out of or is based upon: (i) any misrepresentation by Purchaser or breach of any warranty by Purchaser in this Agreement or in any exhibits or schedules attached hereto or any Related Agreement; or (ii) any breach or default in performance by Purchaser of any covenant or undertaking to be performed by Purchaser hereunder, or any other agreement entered into by the Company and Purchaser relating hereto.
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).
