Common use of Terms of Termination Clause in Contracts

Terms of Termination. Each of the Merger Parties shall bear its own expenses with respect to the Merger Agreement, the transactions contemplated thereby and this Agreement. The foregoing notwithstanding and subject to Section 5(b) of Article B of this Agreement, First Union shall indemnify and hold harmless each of the Gotham Merger Parties and the Gotham Funds and any of their respective affiliates in connection with any and all claims, causes of action, litigation, judgments, fines, application for plaintiffs' fees, expenses (including attorneys' fees incurred from and after the date hereof), penalties, liability or damages of every kind and description, whether known or unknown, incurred by such Gotham Merger Party, Gotham Fund or any of their respective affiliates in connection with a Proceeding; PROVIDED, HOWEVER, that such indemnification shall not apply to any fees or expenses (including attorneys' fees) incurred by any Gotham Merger Party or Gotham Fund prior to the date hereof. The term "Proceeding" shall include any known or unknown, future, threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, future, threatened, pending or completed proceeding, whether brought in the right of First Union or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative nature, brought by any holder of First Union securities (including Company Common Shares, Company Preferred Shares or Company Debt) in connection with the Merger Agreement and the transactions contemplated thereby and this Agreement and the transactions contemplated hereby, and shall include, but shall not be limited to: (i) KIMELDORF V. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS et al. (Supreme Court of New York, County of New York) (Index No. 107176/02) (hereinafter referred to as KIMELDORF); (ii) FINK V. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS et al. (Supreme Court of New York, County of New York) (Index No. 03600265); (iii) K-A & COMPANY, LTD. V. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS et al. (United States District Court, Northern District of Ohio, Eastern Division) (Case No.

Terms of Termination. Each of the Merger Parties shall bear its own expenses with respect to the Merger Agreement, the transactions contemplated thereby and this Agreement. The foregoing notwithstanding and subject to Section 5(b) of Article B of this Agreement, First Union shall indemnify and hold harmless each of the Gotham Merger Parties and the Gotham Funds and any of their respective affiliates in connection with any and all claims, causes of action, litigation, judgments, fines, application for plaintiffs' fees, expenses (including attorneys' fees incurred from and after the date hereof), penalties, liability or damages of every kind and description, whether known or unknown, incurred by such Gotham Merger Party, Gotham Fund or any of their respective affiliates in connection with a Proceeding; PROVIDEDprovided, HOWEVERhowever, that such indemnification shall not apply to any fees or expenses (including attorneys' fees) incurred by any Gotham Merger Party or Gotham Fund prior to the date hereof. The term "Proceeding" shall include any known or unknown, future, threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, future, threatened, pending or completed proceeding, whether brought in the right of First Union or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative nature, brought by any holder of First Union securities (including Company Common Shares, Company Preferred Shares or Company Debt) in connection with the Merger Agreement and the transactions contemplated thereby and this Agreement and the transactions contemplated hereby, and shall include, but shall not be limited to: (i) KIMELDORF V. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS Kimeldorf v. First Union Real Estate Equity and Mortgage Investments et al. (Supreme Court of New York, County of New York) (Index No. 107176/02) (hereinafter referred to as KIMELDORFKimeldorf); (ii) FINK V. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS Fink v. First Union Real Estate Equity and Mortgage Investments et al. (Supreme ▇upreme Court of New York, County of New York) (Index No. 03600265); (iii) K-A & COMPANYCompany, LTD. V. FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS et al. (United States District Court, Northern District of Ohio, Eastern Division) (Case No.Ltd.