Common use of Indemnification by Members Clause in Contracts

Indemnification by Members. (a) ArchCo hereby indemnifies, defends and holds harmless the Company, each Subsidiary, and Bluerock and Sxxxx LLC and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of Bluerock and Sxxxx LLC and each of their respective Affiliates, from and against all loss, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part of, or by, ArchCo or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of ArchCo or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of the ArchCo under this Agreement. (b) Bluerock hereby indemnifies, defends and holds harmless the Company, each Subsidiary, and ArchCo and Sxxxx LLC and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of ArchCo and Sxxxx LLC and each of their respective Affiliates, from and against all loss, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part of, or by, Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (iii) any breach of any obligation of Bluerock under this Agreement or (iv) the failure of the Property Owner to fulfill its obligations to make payments to the Project Manager due under the Project Administration Agreement in accordance with its terms. (c) Sxxxx LLC hereby indemnifies, defends and holds harmless the Company, each Subsidiary, and ArchCo and Bluerock and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of ArchCo and Bluerock and each of their respective Affiliates, from and against all loss, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part of, or by, Sxxxx LLC or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Sxxxx LLC or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of Sxxxx LLC under this Agreement.

Indemnification by Members. (a) ArchCo Developer has disclosed to IHP those liabilities identified on Exhibit “L” and IHP consents to the assumption of such liabilities by the Company. Except for such liabilities, the Company shall not be liable for any other obligations incurred by Developer or any of its Affiliates prior to the formation of the Company. To the fullest extent permitted by law, except to the extent any of the following arises from the sole negligence or willful misconduct of IHP or agents, servants or independent contractors who are directly responsible to IHP, Developer hereby indemnifiesagrees to protect, defends indemnify, defend with counsel satisfactory to IHP, and holds hold harmless the Company, each SubsidiaryIHP, its Affiliates and Bluerock and Sxxxx LLC and each of their respective Affiliatespartners, as well as the respective members, managers, employees, agents, trustees, beneficiaries, officers, directors, membersshareholders, partnersdivisions, shareholders subsidiaries and employees of Bluerock and Sxxxx LLC and each of their respective Affiliatessuccessors, from and against any and all loss, expense, damage, injurylosses, costs, claims and liabilities suffered or sustained by them obligations, claims, expenses, damages (including but not limited excluding consequential damages unrelated to any judgmentthe Project), awardliabilities, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense costs, expert and consultant costs, fines, judgments, penalties, debts, suits, actions and causes of any actual or threatened action, proceeding or claim) as a result of or action (including those arising out of bodily injury and/or personal injury to, or death of, persons) (collectively, “Liabilities”) caused by, arising out of or relating directly or indirectly to (i) any fraud, gross negligence liability or willful or wanton misconduct obligation not expressly assumed by the Company as identified on the part of, or by, ArchCo Exhibit “L” incurred by Developer or any of its Affiliates prior to formation of the Company; (ii) the inaccuracy of any representation or warranty made by Developer or its Affiliates in this Agreement; (iii) the negligence or willful misconduct of Developer, its Affiliates and their respective officers, employees, directors, shareholders, constituent members, managers, partners, agents and representatives to the extent proceeds from insurance do not fully satisfy same; (iv) the Warranty Work (excluding any Warranty Work for Units in which construction commenced subsequent to the removal of Developer as Managing Member); (v) any claims for latent or patent defects in design, development or construction of the Project, including those claims for which the Company may be strictly liable, whether arising prior or subsequent to the acquisition of the Property by the Company and whether or not coverage is afforded by the Project insurance, (vi) any bonds posted by or on the behalf of the Company in connection with the Project and/or any claims on any such bonds from any surety providing such bonds; (vii) the breach by Developer of any of its obligations under this Agreement or at law or by any Affiliate of Developer under any agreement with the Company, or the occurrence of an Event of Default with respect to Developer or any of its agents, officers, directors, members, partners, shareholders Affiliates; and employees, (iiviii) any lossclaims, expensedamages, damageliabilities, injury, costs, claims and liabilities under so called “bad boy” guaranties actions or similar agreements causes of action relating to the extent Purchase Agreement and any documents or other instruments executed in connection with the lossPurchase Agreement, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on which arise prior to the part of ArchCo or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation assignment of the ArchCo under this AgreementPurchase Agreement to the Company. (b) Bluerock Subject to the limitations of Section 12.20 hereof, and except to the extent of any Liabilities arising from the sole negligence or willful misconduct of Developer or agents, servants or independent contractors who are directly responsible to Developer, IHP hereby indemnifiesagrees to indemnify, defends defend with counsel satisfactory to Developer, and holds hold harmless the Company, each SubsidiaryDeveloper, and ArchCo and Sxxxx LLC and each of their its respective Affiliatespartners, as well as the respective members, managers, employees, agents, trustees, beneficiaries, officers, directors, members, partners, shareholders directors and employees of ArchCo and Sxxxx LLC and each of their respective Affiliatesshareholders, from and against any and all lossLiabilities caused by, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of or relating directly or indirectly to (i) any fraud, the gross negligence or willful misconduct of IHP, its Affiliates, and their respective officers, employees, directors, shareholders, constituent members, managers, partners, agents, and representatives to the extent proceeds from insurance do not fully satisfy same, and (ii) the breach or wanton misconduct on the part of, or by, Bluerock or default by IHP of any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (iii) any breach of any obligation of Bluerock obligations under this Agreement or (iv) the failure of the Property Owner to fulfill its obligations to make payments to the Project Manager due under the Project Administration Agreement in accordance with its terms. (c) Sxxxx LLC hereby indemnifies, defends and holds harmless the Company, each Subsidiary, and ArchCo and Bluerock and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of ArchCo and Bluerock and each of their respective Affiliates, from and against all loss, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part ofat law, or by, Sxxxx LLC or any the occurrence of its Affiliates or any an Event of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements Default with respect to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Sxxxx LLC or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of Sxxxx LLC under this AgreementIHP.

Indemnification by Members. (a) ArchCo TNHC has disclosed to IHP those liabilities identified on Exhibit “L” and IHP consents to the assumption of such liabilities by the Company. Except for such liabilities, the Company shall not be liable for any other obligations incurred by TNHC or any of its Affiliates prior to the formation of the Company. To the fullest extent permitted by law, except to the extent any of the following arises from the sole negligence, willful misconduct or breach of IHP or agents, servants or independent contractors who are directly responsible to IHP, TNHC hereby indemnifiesagrees to protect, defends indemnify, defend with counsel satisfactory to IHP, and holds hold harmless the Company, each SubsidiaryIHP, its Affiliates and Bluerock and Sxxxx LLC and each of their respective Affiliatespartners, as well as the respective members, managers, employees, agents, trustees, beneficiaries, officers, directors, membersshareholders, partnersdivisions, shareholders subsidiaries and employees of Bluerock and Sxxxx LLC and each of their respective Affiliatessuccessors (collectively, “IHP Indemnitees”), from and against any and all loss, expense, damage, injurylosses, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgmentobligations, awardclaims, settlementexpenses, reasonable damages, liabilities, attorneys’ fees and other costs or expenses incurred in connection with the defense costs, expert and consultant costs, fines, judgments, penalties, debts, suits, actions and causes of any actual or threatened action, proceeding or claim) as a result of or action (including those arising out of bodily injury and/or personal injury to, or death of, persons) (collectively, “Liabilities”) caused by, arising out of or relating directly or indirectly to (i) any fraud, gross negligence liability or willful or wanton misconduct obligation not expressly assumed by the Company as identified on the part of, or by, ArchCo Exhibit “L” incurred by TNHC or any of its Affiliates prior to formation of the Company; (ii) the material inaccuracy of any representation or any warranty made by or deemed to be made by TNHC or its Affiliates in this Agreement; (iii) the negligence (whether active or passive) or willful misconduct of TNHC, its agentsAffiliates and their respective officers, officersemployees, directors, shareholders, constituent members, managers, partners, shareholders agents, subcontractors, suppliers, invitees, licensees and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements representatives to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of ArchCo or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of the ArchCo under this Agreement. (b) Bluerock hereby indemnifies, defends and holds harmless the Company, each Subsidiary, and ArchCo and Sxxxx LLC and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of ArchCo and Sxxxx LLC and each of their respective Affiliates, proceeds from and against all loss, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but insurance do not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part of, or by, Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (iii) any breach of any obligation of Bluerock under this Agreement or fully satisfy same; (iv) the failure of the Property Owner TNHC to fulfill satisfy any of its obligations to make payments in connection with the Project insurance; (v) to the Project Manager due under extent of TNHC’s failure to use Due Care, any and all claims on any improvements bonds for the Project Administration and/or claims from any bonding companies relating to the non-payment or failure to complete any such bonded work; and (vi) the breach by TNHC of any of its obligations under this Agreement in accordance or at law or by any Affiliate of TNHC under any agreement with the Company, or the occurrence of an Event of Default with respect to TNHC or any of its termsAffiliates. (cb) Sxxxx LLC Subject to the limitations of Section 12.20 hereof, and except to the extent of any Liabilities arising from the negligence, willful misconduct or breach of TNHC or agents, servants or independent contractors who are directly responsible to TNHC, IHP hereby indemnifiesagrees to indemnify, defends defend with counsel satisfactory to TNHC, and holds hold harmless the Company, each SubsidiaryTNHC, and ArchCo and Bluerock and each of their its respective Affiliatespartners, as well as the respective members, managers, employees, agents, trustees, beneficiaries, officers, directors, members, partners, shareholders directors and employees of ArchCo and Bluerock and each of their respective Affiliatesshareholders, from and against any and all lossLiabilities caused by, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of or relating directly or indirectly to (i) any fraud, gross the negligence or willful misconduct of IHP, its Affiliates, and their respective officers, employees, directors, shareholders, constituent members, managers, partners, agents, and representatives to the extent proceeds from insurance do not fully satisfy same, and (ii) the breach or wanton misconduct on the part of, or by, Sxxxx LLC or default by IHP of any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Sxxxx LLC or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of Sxxxx LLC obligations under this AgreementAgreement or at law, or the occurrence of an Event of Default with respect to IHP.

Indemnification by Members. Caroxxxx Xxxxxx, Xxlesite and Metrosite. (a) ArchCo hereby indemnifiesIn addition to all other sums due hereunder or provided for in this Agreement, defends the Members, Caroxxxx Xxxxxx, Xxlesite and holds Metrosite jointly and severally agree to indemnify and hold harmless the Company, each Subsidiary, ISD and Bluerock and Sxxxx LLC its Affiliates and each of their respective Affiliates, as well as the respective agents, officers, directors, membersagents, employees, subsidiaries, partners, shareholders attorneys, accountants and employees of Bluerock and Sxxxx LLC and each of their respective Affiliatescontrolling persons (each, an "ISD Indemnified Party") to the fullest extent permitted by law from and against any and all losslosses, expenseclaims, damagedamages, injuryexpenses (including, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlementwithout limitation, reasonable attorneys’ fees fees, disbursements and other costs charges of counsel incurred by an ISD Indemnified Party in any action or expenses incurred proceeding between any of the Members, Caroxxxx Xxxxxx, Xxlesite or Metrosite and such ISD Indemnified Party (or ISD Indemnified Parties) or between an ISD Indemnified Party (or ISD Indemnified Parties) and any third party or otherwise) or other liabilities, losses, or diminution in connection with value of Telesite, Metrosite, or ISD (collectively, "Loss") resulting from or arising out of the defense of Merchantile Loan and the assumption thereof by Finlxx, xxy amounts payable to Llama Company or otherwise, pursuant to the Agreement, dated November 15, 1996 (the "Llama Agreement"), by and between Llama Company (other than any actual or threatened action"Disengagement Fee," as defined in the Llama Agreement, proceeding or claim) payable as a result of the termination of the Llama Agreement by ISD or Telesite after the Closing), and Telesite any breach of any representation or warranty (including, without limitation, if any of the Telesite Receivables or Metrosite Receivables are not collected with the periods set forth in Sections 5.12 and 6.12, respectively), any breach of any covenant or agreement of any of the Members, Caroxxxx Xxxxxx, Xxlesite or Metrosite in this Agreement or in any Member Agreement, including, without limitation, the failure to make payment when due of amounts owing pursuant to this Agreement or any Member Agreement, on the due date thereof (whether at the scheduled maturity, by acceleration or otherwise) or any legal, administrative or other actions (including actions brought by ISD, Metrosite or Telesite or any equity holders of Telesite or Metrosite or derivative actions brought by any Person claiming through or in Telesite's or Metrosite's name), proceedings or investigations (whether formal or informal), or written threats thereof, based upon, relating to or arising out of this Agreement or any Member Agreement, the transactions contemplated hereby or thereby, or any ISD Indemnified Party's role therein or in the transactions contemplated thereby, any and all liabilities and obligations of the Members, Caroxxxx Xxxxxx, Xxlesite and Metrosite, of any kind or nature whatsoever, whether accrued, absolute, contingent or otherwise, known or unknown, that are not set forth on the Telesite Financial Statements or the Metrosite Financial Statements; or the Member's ownership and operation of the Telesite Business and the Metrosite Business prior to the Closing Date; provided, however, that none of the Members, Caroxxxx Xxxxxx, Xxlesite or Metrosite shall be liable under this Section 13.1 to an ISD Indemnified Party: (a) for any amount paid by the ISD Indemnified Party in settlement of claims by the ISD Indemnified Party without the consent of the Members (which consent shall not be unreasonably withheld), (b) to the extent that it is finally judicially determined that such Loss resulted primarily from the willful misconduct or gross negligence of such ISD Indemnified Party or (c) to the extent that it is finally judicially determined that such Loss resulted primarily from the breach by such ISD Indemnified Party of any representation, warranty, covenant or other agreement of such ISD Indemnified Party contained in this Agreement or any ISD Agreement; provided, further, that if and to the extent that such indemnification is unenforceable for any reason, the Members, Caroxxxx Xxxxxx, Xxlesite and Metrosite will make the maximum contribution to the payment and satisfaction of such Loss which shall be permissable under applicable laws. In connection with the obligation of the Members, Caroxxxx Xxxxxx, Xxlesite and Metrosite to indemnify for expenses as set forth above, the Members, Caroxxxx Xxxxxx, Xxlesite and Metrosite further jointly and severally agree, upon presentation of appropriate invoices containing reasonable detail, to reimburse each ISD Indemnified Party for all such expenses (including, without limitation, fees, disbursements and other charges of counsel incurred by an ISD Indemnified Party in any action or proceeding between ISD and such ISD Indemnified Party (or ISD Indemnified Parties) or between an ISD Indemnified Party (or ISD Indemnified Parties) and any third party or otherwise) as they are incurred by such ISD Indemnified Party; provided, however, that if an ISD Indemnified Party is reimbursed hereunder for any expenses, such reimbursement of expenses shall be refunded to the extent it is finally judicially determined that the Loss in question resulted primarily from (i) any fraud, the willful misconduct or gross negligence of such ISD Indemnified party or willful or wanton misconduct on the part of, or by, ArchCo or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out breach by such ISD Indemnified Party of any representation, warranty, covenant or other agreement of such triggering event thereunder on the part of ArchCo ISD Indemnified Party contained in this Agreement or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of the ArchCo under this ISD Agreement. (b) Bluerock hereby indemnifies, defends and holds harmless Notwithstanding the Company, each Subsidiary, and ArchCo and Sxxxx LLC and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of ArchCo and Sxxxx LLC and each of their respective Affiliatesforegoing, from and against all lossafter the Closing Date, expense, damage, injury, costs, claims the Members and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with Caroxxxx Xxxxxx xxxl be primarily responsible for the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part of, or by, Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Bluerock or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (iii) any breach of any obligation of Bluerock obligations under this Agreement Article XIII and will have no right of contribution or (iv) the failure of the Property Owner other rights against Telesite or Metrosite with respect to fulfill its obligations to make payments to the Project Manager due under the Project Administration Agreement in accordance with its termssuch obligations. (c) Sxxxx LLC hereby indemnifies, defends and holds harmless the Company, each Subsidiary, and ArchCo and Bluerock and each of their respective Affiliates, as well as the respective agents, officers, directors, members, partners, shareholders and employees of ArchCo and Bluerock and each of their respective Affiliates, from and against all loss, expense, damage, injury, costs, claims and liabilities suffered or sustained by them (including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim) as a result of or arising out of (i) any fraud, gross negligence or willful or wanton misconduct on the part of, or by, Sxxxx LLC or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees, (ii) any loss, expense, damage, injury, costs, claims and liabilities under so called “bad boy” guaranties or similar agreements to the extent the loss, expense, damage, injury, costs, claims and liabilities arises out of any such triggering event thereunder on the part of Sxxxx LLC or any of its Affiliates or any of its agents, officers, directors, members, partners, shareholders and employees or (iii) any breach of any obligation of Sxxxx LLC under this Agreement.