Common use of Special Indemnity Clause in Contracts

Special Indemnity. Prior to Closing, Sellers shall use commercially reasonable efforts to obtain and deliver to Purchaser (a) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement (the “Unrecorded Water Easement”) described in Parcel 3 on Schedule 4.02(n), and (b) an assignment instrument (the “Canal Assignment”) pursuant to which the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”) to the current grantor under the Canal Easement, and an estoppel certificate or similar written assurance executed by the current grantor under the Canal Easement in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”). In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the right to terminate this Agreement by notice to Sellers. In the event Sellers fail to obtain and deliver to Purchaser the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel on or prior to the Closing Date, from and after the Closing, each Seller shall indemnify, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against any and all reasonable Losses actually incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, as a result of, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver the Unrecorded Water Easement prior to the Closing Date), or (z) assignment to the current grantor of the Canal Easement having caused or resulting in a material change in terms or termination of the Canal Easement (in the event that Sellers fail to deliver the Canal Assignment prior to the Closing Date), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this Agreement.

Special Indemnity. Prior to ClosingDuring the following five (5) years counted as from the Execution Date, Sellers shall use commercially reasonable efforts to obtain SELLERS are severally liable for any liability, of any nature whatsoever, that materializes in a specific damage and deliver to Purchaser (a) that causes a fully executed copy verifiable net loss in CUMBIA and/or AEROCAP and/or PURCHASER, provided that said damage or loss is a consequence of unrecorded Option Agreement for Water Pipeline Easement (the “Unrecorded Water Easement”) described in Parcel 3 on Schedule 4.02(n)any action, and (b) an assignment instrument (the “Canal Assignment”) pursuant to which the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”) decision, omission or agreement entered into by CUMBIA and/or AEROCAP prior to the current grantor under Closing Date. This indemnity includes the Canal Easementliability of AEROCAP and/or CUMBIA as parties to the PROCAPEX consortium (during the applicable term in each case) before third parties, and an estoppel certificate that derive from any action, agreement or similar written assurance executed decision adopted by the current grantor under the Canal Easement in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”). In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the right to terminate this Agreement by notice to Sellers. In the event Sellers fail to obtain and deliver to Purchaser the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel on or PROCAPEX prior to the Closing Date, from and after the Closing, each Seller shall indemnify, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against any and all reasonable Losses actually incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and exclusively in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, as a result of, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar relation to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (interest held by AEROCAP and/or CUMBIA in the event that Sellers fail to deliver the Unrecorded Water Easement prior to the Closing Date), or (z) assignment to the current grantor of the Canal Easement having caused or resulting in a material change in terms or termination of the Canal Easement (in the event that Sellers fail to deliver the Canal Assignment prior to the Closing Date), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules PROCAPEX as of the date of the events that produce or originate said liability. In any case, in the event of any and all claims against PROCAPEX covered under this indemnity and this Agreement, PURCHASER undertakes to: (i) promptly notify SELLERS, as applicable, about the existence of the claim filed against PROCAPEX so as to enable SELLERS to participate in said defense, (ii) defend AEROCAP and/or CUMBIA in good faith, on a timely and diligent basis, (iii) allow the participation of SELLERS in any settlement decision of PROCAPEX with any third party, in respect of which the corresponding payment would not be paid by third-party funds deriving from insurance policies or compliance bonds, of undertakings of AIRPLAN or of any other source; (iv) to always vote in favor, in case of control, to cause PROCAPEX to (1) refrain from distributing profits or to transfer credits to its parties to the consortium while any claim or contingency is pending, (2) submit all claims and exceptions against third parties and in favor of PROCAPEX on a diligent and timely basis, and (3) respond and pay in good faith, timely and directly, the grounded claims filed against it (and to submit the corresponding claims against insurers or before the applicable third parties on a timely and diligent manner). In no event shall PURCHASER request the compensation or reimbursement of damages or losses under this ARTICLE VI without such damage or loss being net of all remedies available to PROCAPEX for the repair of such damage or loss, provided that such remedies are available and have been solved as of the date of the corresponding claim. If PURCHASER files a claim against SELLER for a damage or loss that is further compensated or reimbursed to PROCAPEX and/or PURCHASER (either by CUMBIA and/or AEROCAP directly) (including, for instance, with funds pending to be paid by a third party or subject to litigation), PURCHASER shall immediately notify and reimburse SELLERS (as applicable), the corresponding amounts. For clarity purposes, the indemnity set forth herein shall not cover any contingency whatsoever, regardless of their nature and amount, against AEROCAP, when such directly or indirectly derives from, or results of: (a) an action, agreement or decision of PROCAPEX, adopted or amended by PROCAPEX after the Closing Date (or prior to Closing but with the cooperation of PURCHASER).

Special Indemnity. Prior to Closing, Sellers shall use commercially reasonable efforts to obtain and deliver to Purchaser (a) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement (the “Unrecorded Water Easement”) [CONFIDENTIAL TREATMENT REQUESTED] described in Parcel [CONFIDENTIAL TREATMENT REQUESTED] 3 on Schedule 4.02(n), and (b) an assignment instrument (the “Canal Assignment”) [CONFIDENTIAL TREATMENT REQUESTED] pursuant to which the original grantor assigned the Right-of-Way Easement [CONFIDENTIAL TREATMENT REQUESTED] described in Parcel [CONFIDENTIAL TREATMENT REQUESTED] 11 on Schedule 4.02(n) (the “Canal Easement”) [CONFIDENTIAL TREATMENT REQUESTED] to the current grantor under the Canal Easement[CONFIDENTIAL TREATMENT REQUESTED], and an estoppel certificate or similar written assurance executed by the current grantor under the Canal Easement [CONFIDENTIAL TREATMENT REQUESTED] in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”)[CONFIDENTIAL TREATMENT REQUESTED]. In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. , the [CONFIDENTIAL TREATMENT REQUESTED] or the [CONFIDENTIAL TREATMENT REQUESTED] prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the right to terminate this Agreement by notice to Sellers. In the event Sellers fail to obtain and deliver to Purchaser the Unrecorded Water Easement[CONFIDENTIAL TREATMENT REQUESTED], the Canal Assignment [CONFIDENTIAL TREATMENT REQUESTED] or the Canal Estoppel [CONFIDENTIAL TREATMENT REQUESTED] on or prior to the Closing Date, from and after the Closing, each Seller shall indemnify, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against any and all reasonable Losses actually CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, as a result of, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement [CONFIDENTIAL TREATMENT REQUESTED] for Parcel [CONFIDENTIAL TREATMENT REQUESTED] 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar to the unrecorded easement [CONFIDENTIAL TREATMENT REQUESTED] for Parcel [CONFIDENTIAL TREATMENT REQUESTED] 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver the Unrecorded Water Easement [CONFIDENTIAL TREATMENT REQUESTED] prior to the Closing Date), or (z) assignment to the current grantor of the Canal Easement [CONFIDENTIAL TREATMENT REQUESTED] having caused or resulting in a material change in terms or termination of the Canal Easement [CONFIDENTIAL TREATMENT REQUESTED] (in the event that Sellers fail to deliver the Canal Assignment [CONFIDENTIAL TREATMENT REQUESTED] prior to the Closing Date), or any Company monetary breach or default under the Canal Easement [CONFIDENTIAL TREATMENT REQUESTED] (in the event that Sellers fail to deliver the Canal Estoppel [CONFIDENTIAL TREATMENT REQUESTED] prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this Agreement.

Special Indemnity. Prior The Acquiror Indemnified Parties shall be entitled to Closingindemnification solely from the Net Indemnification Escrow Amount and the Indemnification Notes for the full amount of any Losses with respect to (i) any obligation to CSX Corporation and its Subsidiaries (or any claim alleging such an obligation) relating to the CSX Purchase and (ii) any claims (now or hereafter existing) related to the injuries suffered by Xxxxxx X. Xxxxxx that are the subject of the lawsuit titled Xxxxxx X. Xxxxxx v. Xxxxxx Xxxxxxx, Sellers shall use commercially reasonable efforts to obtain Xxxxxxxx Xxxxxxxx, Xxxx Xxxxxxx, Ironbound Express and deliver to Purchaser Maersk Container Service filed in the Supreme Court of the State of New York (aIndex No. 2003-4375) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement including the related third-party claim by Maersk Equipment Service Co., Inc. against CSX Lines LLC and Horizon Lines, Inc. filed in such action (the “Unrecorded Water Easement”) or any other lawsuit, as may be amended or refiled). Any claim described in Parcel 3 on Schedule 4.02(n), and (b) an assignment instrument (the this Section 9.8 shall be referred to herein as a “Canal Assignment”) pursuant to which the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”) to the current grantor under the Canal Easement, and an estoppel certificate or similar written assurance executed by the current grantor under the Canal Easement in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”). In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser Seller Matter.” The Holder Representative shall have the right to terminate this Agreement assume the defense of any Seller Matter in accordance with Section 9.5 and from and after the Closing Date shall be deemed to have done so in respect of the Seller Matter set forth in clause (ii) without any further action by notice to SellersHolder Representative. In Notwithstanding the event Sellers fail to obtain and deliver to Purchaser foregoing, Acquiror shall have the Unrecorded Water Easementright, the Canal Assignment or the Canal Estoppel on or prior to 10 Business Days after the Closing Date, from and after to settle without the Closingconsent of the Holder Representative the Seller Matter set forth in clause (ii) for an amount not to exceed $1,000,000, each Seller shall indemnifyand, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against any and all reasonable Losses actually incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, as a result of, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver of any settlement by Acquiror of the Unrecorded Water Easement prior to the Closing DateSeller Matter set forth in clause (ii), or Acquiror shall be indemnified for the amount of such settlement (z) assignment but not to exceed $1,000,000 unless such settlement is consented to by the current grantor Holder Representative). Acquiror shall cooperate with the Holder Representative in any discussions with any other party involved in such claim. Any Losses for which any Acquiror Indemnified Party is entitled to indemnification under this Section 9.9 shall be satisfied solely out of the Canal Easement having caused or resulting in a material change in terms or termination Net Indemnification Escrow Amount and the Indemnification Notes without regard to any of the Canal Easement thresholds set forth in Section 9.3 (in it being understood and agreed that any Losses with respect to any Seller Matter shall not be counted against the event that Sellers fail to deliver the Canal Assignment prior to the Closing Datethreshold set forth therein), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this Agreement.

Special Indemnity. Prior to Closing, Sellers shall use commercially reasonable efforts to obtain and deliver to Purchaser (a) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement (the “Unrecorded Water Easement”) described in Parcel 3 on Schedule 4.02(n), and (b) an assignment instrument (the “Canal Assignment”) pursuant to which the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”) to the current grantor under the Canal Easement, and an estoppel certificate or similar written assurance executed by the current grantor under the Canal Easement in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”). In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the right to terminate this Agreement by notice to Sellers. In the event Sellers fail to obtain and deliver to Purchaser the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel on or prior to the Closing Date, from and after the Closing, each Seller shall indemnify, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against any and all reasonable Losses actually incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, as a result of, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver the Unrecorded Water Easement prior to the Closing Date), or (z) assignment to the current grantor of the Canal Easement having caused or resulting in a material change in terms or termination of the Canal Easement (in the event that Sellers fail to deliver the Canal Assignment prior to the Closing Date), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this Agreement.

Special Indemnity. Prior Notwithstanding anything to Closingthe contrary contained in this Agreement or any Document, Sellers Seller's maximum aggregate liability under this Section 9 shall use commercially reasonable efforts to obtain and deliver to Purchaser (a) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement not exceed $160,000 in the aggregate (the “Unrecorded Water Easement”) described in Parcel 3 on Schedule 4.02(n"Maximum Aggregate Liability Amount"), and subject to reduction as hereinafter set forth. It is acknowledged that the parties will be closing the transactions contemplated hereunder without obtaining (bi) an assignment instrument the prior acknowledgements of the Lessees (the “Canal Assignment”) pursuant to which the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”"Lessee Acknowledgements") to the current grantor under transfer of the Canal EasementLeases and the Equipment and (ii) the prior consents or acknowledgements (as applicable) of the Lenders to the transfer of the Equipment and the Leases (such consents or acknowledgements, and an estoppel certificate or similar written assurance executed by as applicable, are collectively called the current grantor under the Canal Easement in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”"Lender Consents"). In order to induce Buyer to close the event that Sellers obtain and deliver the Unrecorded Water Easementcontemplated transactions without obtaining, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the right to terminate this Agreement by notice to Sellers. In the event Sellers fail to obtain and deliver to Purchaser the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel on or prior to the Closing Date, from the Lessee Acknowledgements and after the ClosingLender Consents, each Seller shall indemnifyhas agreed to make this indemnity in this Section 9. Subject to the Maximum Aggregate Liability Amount, defend, reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against Seller agrees to indemnify Buyer for any and all reasonable Losses actually incurred by any Purchaser Indemnified Party, acting consistent with Prudent Industry Practices and in a manner consistent with the actions of such Purchaser Indemnified Party or other utilities acting under similar circumstances, losses which Buyer may suffer as a result ofof not obtaining, in connection with, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration due, and otherwise on terms substantially similar to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver the Unrecorded Water Easement prior to the Closing Date, (i) with respect to the Applicable Funded Leases (as hereinafter defined), the Lessee Acknowledgements related thereto or the Lender Consents related thereto and (zii) assignment with respect to the current grantor Unfunded Leases, the Lessee Acknowledgments related thereto. With respect to any Applicable Funded Lease, if Buyer shall receive the Lessee Acknowledgement related thereto and the Lender Consent related thereto, the Maximum Liability Aggregate Amount shall be reduced by the "Reduction Amount" set forth on the Schedule opposite such Applicable Funded Lease. Such reduction may occur from time to time as such Lessee Acknowledgments and Lender Consents are obtained. With respect to any Unfunded Lease, if Buyer shall receive the Lessee Acknowledgement related thereto, the Maximum Aggregate Liability Amount shall also be reduced by the "Reduction Amount" set forth on the Schedule opposite such Unfunded Lease. Such reduction may occur from time to time as such Lessee Acknowledgements are obtained. The term "Applicable Funded Lease" means any Funded Lease which does not give the Lessee thereunder the option or the right to purchase the related Equipment for $1.00 (or less) at the expiration of the Canal Easement having caused lease term thereof. The Seller's obligations under this Section are conditioned upon Buyer exercising commercially reasonable efforts to promptly obtain the Lessee Acknowledgments and the Lender Consents, including (without limitation) executing such documents or resulting instruments as any Lessee or Lender may reasonably request in a material change in terms or termination of connection therewith, and Buyer and Seller agree to exert such efforts (and execute such documents and instruments). Without limiting the Canal Easement (in foregoing, Seller agrees to contact the event that Sellers fail to deliver Lessees and the Canal Assignment prior to Lenders by telephone if the Lessee acknowledgements and the Lender Acknowledgements are not obtained within 2 weeks from the Closing Date), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this Agreement.

Special Indemnity. Prior to Closing, Sellers shall use commercially reasonable efforts to obtain and deliver to Purchaser (a) a fully executed copy of unrecorded Option Agreement for Water Pipeline Easement (the “Unrecorded Water Easement”) described in Parcel 3 on Schedule 4.02(n), and (b) an assignment instrument (the “Canal Assignment”) pursuant to which the original grantor assigned the Right-of-Way Easement described in Parcel 11 on Schedule 4.02(n) (the “Canal Easement”) to the current grantor under the Canal Easement, and an estoppel certificate or similar written assurance executed by the current grantor under the Canal Easement in form and substance reasonably acceptable to Purchaser (the “Canal Estoppel”). In the event that Sellers obtain and deliver the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [CONFIDENTIAL TREATMENT REQUESTED]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. prior to Closing, and any of such are not reasonably acceptable to Purchaser, then Purchaser shall have the right to terminate this Agreement by notice to Sellers. In the event Sellers fail to obtain and deliver to Purchaser the Unrecorded Water Easement, the Canal Assignment or the Canal Estoppel on or prior to the Closing Date, from From and after the Closing, each Buyer shall manage the litigation arising from the civil complaint filed by Xxxxxx Xxxxxxx against Seller shall in the United States District Court for the Western District of Texas, San Antonio Division, as Civil Action No. SA00CA0385 (the "Texas Litigation"), and Seller and Summit, jointly and severally, covenant and agree to indemnify, defendhold harmless, pay and reimburse and hold harmless the Purchaser Indemnified Parties, on a several and not a joint basis, from and against Buyer Parties for one half of any and all damages, losses, claims, deficiencies, liabilities, obligations, costs and expenses (including, but not limited to, any interest, penalties, fines, reasonable Losses actually attorneys' fees and costs and expenses) incurred or suffered by any Purchaser Indemnified PartyBuyer Party arising from or relating to the Texas Litigation. Damages, acting consistent with Prudent Industry Practices losses, claims, deficiencies, liabilities, obligations, costs and expenses in a manner consistent with the actions form of the distribution by any Indemnified Buyer Party of free or discounted goods or services shall be deemed to equal the difference of the actual cost basis of such Purchaser Indemnified Buyer Party of such goods or other utilities acting under similar circumstancesthe actual cost to such Indemnified Buyer Party of providing such services, less, in the case of any such discounted items, any proceeds actually received by such Indemnified Buyer Party with respect to such goods or services, as a result ofthe case may be. Payments made pursuant to this Section 12.7 shall be made promptly following Summit's receipt of invoices identifying in reasonable detail the amount of any such payment or reimbursement required to be made hereunder. Notwithstanding anything to the contrary set forth in this Agreement, in connection with(i) the Texas Litigation may not be settled without prior written consent of Summit, relating to or arising out of (y) failure of Company to hold a water pipeline easement for Parcel 3 on Schedule 4.02(n), with no further consideration duewhich consent may not unreasonably be withheld, and otherwise on terms substantially similar (ii) Summit and Seller shall have no liability or obligation to the unrecorded easement for Parcel 5 on Schedule 4.02(n) (in the event that Sellers fail to deliver the Unrecorded Water Easement prior Indemnified Buyer Parties with respect to the Closing Date), or (z) assignment to the current grantor of the Canal Easement having caused or resulting Texas Litigation except as provided in a material change in terms or termination of the Canal Easement (in the event that Sellers fail to deliver the Canal Assignment prior to the Closing Date), or any Company monetary breach or default under the Canal Easement (in the event that Sellers fail to deliver the Canal Estoppel prior to the Closing Date). The foregoing indemnity shall be effective notwithstanding any disclosures in the Disclosure Schedules as of the date of this AgreementSection 12.7.