Transactional agreements in business and real estate – buy-sell agreements, leases, and more – are extended exercises in identifying and allocating risks. Indemnification and hold harmless agreements are among the most important tools for allocating that risk. The indemnitor agrees to “make whole” the indemnitee on the occurrence of certain claims or liabilities, or the imposition of damages. The seller agrees to indemnify the buyer from certain risks that may arise after the sale closes. Or a commercial real estate lessee may agree to hold the lessor harmless from damages arising from its use or even the use of third parties. Defining the scope of the indemnity, understanding the limits of what the law will allow, and ensuring cost-effective claims by the indemnitee against the indemnitor are essential to the success of these agreements. This program will provide you with a practical guide to drafting indemnification and hold harmless agreements, enhancing enforceability and avoiding traps.
• Drafting indemnification and hold harmless agreements in real estate and business transactions
• Framework of law governing the enforceability of indemnity
• Uses of indemnification and hold harmless provisions in business and commercial real estate buy-sell transactions
• Defining the scope of indemnity – claims, liabilities, damages, and the role of fault v. no fault
• Drafting a process for indemnitee to make a claim on indemnitors
• Right to have indemnitor defend and pay for litigation
• Enhancing the enforceability of indemnity and hold harmless agreements
Manuel A. Fernandez is partner in the Miami office of Akerman, LLP, where he has an extensive real estate practice representing commercial mortgage lenders, developers, and institutional and non-institutional investors in connection with the acquisition, development, financing, leasing and management of commercial and residential real estate assets and distressed real estate transactions. He also represents hedge funds, pension funds, and other real estate opportunity funds in connection with joint ventures. Mr. Fernandez received his B.A., cum laude, from the University of Miami and his J.D., magna cum laude, from the University of Miami School of Law.
Richard R. Goldberg is a retired partner, resident in the Philadelphia office of Ballard Spahr, LLP, where he established an extensive real estate practice, including development, financing, leasing, and acquisition. Earlier in his career, he served as vice president and associate general counsel of The Rouse Company for 23 years. He is past president of the American College of Real Estate Lawyers, past chair of the Anglo-American Real Property Institute, and past chair of the International Council of Shopping Centers Law Conference. Mr. Goldberg is currently a Fellow of the American College of Mortgage Attorneys and is a member of the American Law Institute. Mr. Goldberg received his B.A. from Pennsylvania State University and his LL.B. from the University of Maryland School of Law.