Insurance and Indemnity Provisions in Commercial Real Estate Contracts: PSAs, Leases, and Construction Contracts

The allocation of risk accomplished by indemnification agreements is often a hotly negotiated term of real estate contracts and leases and, when not negotiated, frequently are not in compliance with applicable state indemnification laws or do not reflect the basis axim that liability should follow control. Unbalanced indemnification provisions frequently arise from unbalanced negotiating positions. This panel will address the nuts and bolts of indemnification agreements and insurance contracts, analyzing how indemnification agreements require one party (the indemnitor), bear the risk of claims against the other party (the indemnitee) for loss and damages claimed by a third party. The role of insurance in providing a source of funds for indemnification obligations will be addressed.

Indemnification and insurance provisions are standard requirements of PSAs, leases, and construction contracts. Standalone indemnity agreements are also frequently employed to balance the rights of a counterparty with its obligations.

Informed counsel must recognize how to protect client interests by deftly structuring indemnification provisions, taking into account state law and respective risks and control in careful drafting.

Listen as our authoritative panel discusses current trends and practical strategies in negotiating these provisions, as well as the advanced arguments made by the parties to these instruments.