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200510796
<br />Claim shall be reduced to the extent directly caused by Edgemark's noncompliance with any
<br />requirement of this Agreement.
<br />(ii) Edgemark shall indemnify, defend, and hold harmless Northcott
<br />from and against any and all losses, claims, actions, damages, liabilities, penalties, fines, or
<br />expenses of whatsoever nature including, without limitation, reasonable attorneys' fees through
<br />the appellate level and costs on account of mechanics' lien claims, injury to persons, the death of
<br />any person, or damages to property ( "Claims ") resulting from or related to Edgemark's use,
<br />construction or repair of the easements granted herein, except to the extent any such Claim
<br />results from the wrongful acts or omissions or the negligence, gross negligence or willful acts of
<br />the Northcott. The indemnity set forth in this section shall be effective without regard to
<br />compliance or noncompliance with this Agreement by Northcott or Edgemark provided the
<br />amount of any Claim shall be reduced to the extent directly caused by Northcott's
<br />noncompliance with any requirement of this Agreement.
<br />(b) Insurance. Each of Northcott and Edgemark shall, at all times this
<br />Agreement is in effect, maintain an insurance liability policy in an amount equal to or greater
<br />than $1,000,000.00. Within 10 days of a request from Northcott or Edgemark, as the case may
<br />be, Northcott or Edgemark, as the case may be, shall provide to Northcott or Edgemark, as the
<br />case may be, evidence of insurance coverage meeting the requirements of this Section. In the
<br />event at any time Northcott or Edgemark fails to have in place the insurance coverage required
<br />by this Section or fails to provide evidence of insurance as required by this Section, Northcott or
<br />Edgemark, as the case may be, shall have the right, but not the obligation, to purchase, in its own
<br />name or in the name of Northcott or Edgemark, as the case may be, insurance coverage as
<br />required by this Section and the cost thereof shall be the responsibility of Northcott or Edgemark,
<br />as the case may be, as provided in Section 3 above.
<br />5. Estoppel Certificates. The parties shall at any time and from time to time, upon
<br />not less than 15 days prior request by the other party, execute, acknowledge and deliver to the
<br />other party a statement in writing certifying whether this Agreement is unmodified and in full
<br />force and effect, or, if there have been any modifications, that the same is in full force and effect
<br />as modified, including a statement as to whether a default exists and, if such a default exists,
<br />specifying the nature of the default.
<br />6. Remedies for Monetary and Other Disputes. If a party fails to make any payment
<br />required under this Agreement, whether in connection with the repair, maintenance, relocation of
<br />any easement or otherwise, or breaches any other monetary covenant or obligation of this
<br />Agreement (the "Breaching Party "), then the other party (the "Non- Breaching Party ") may
<br />exercise all remedies, legal or equitable, to which the Non - Breaching Party is entitled by law or
<br />by the terms of this Agreement, including but not limited to the right, but not the obligation, to
<br />perform the Breaching Party's obligation hereunder. In the event the Non- Breaching Party elects
<br />to perform the Breaching Party's obligations hereunder, it may give notice to the Breaching
<br />Party who shall promptly reimburse (pursuant to Section 3 above) the Non - Breaching Party for
<br />amounts reasonably incurred by the Non - Breaching Party in performing the Breaching Party's
<br />obligations, including but not limited to reasonable consultants' and attorneys' fees. A breach of
<br />this Agreement by the Breaching Party shall not give the Non - Breaching Party the right to
<br />terminate the easements granted or restrictions established herein.
<br />(31081.120.10/18 /2005 05:33 PM.JEPE.A0209405.ACC;3) 4
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