Common use of Indemnification by the Company, the Operating Partnership and the Advisor Clause in Contracts

Indemnification by the Company, the Operating Partnership and the Advisor. The Company, the Operating Partnership and the Advisor, jointly and severally, agree to indemnify and hold harmless the Agent, its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each an “Affiliate”), its selling agents and each person, if any, who controls the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (1) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (2) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, that, (subject to Section 10(e) below) any such settlement is effected with the written consent of the Company, which written consent shall not be unreasonably withheld; and (3) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Agent) reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above; provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto), or in any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).

Indemnification by the Company, the Operating Partnership and the Advisor. The Company, the Operating Partnership and the Advisor, jointly and severally, agree to indemnify indemnify, defend and hold harmless the Agent, its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each an “Affiliate”), its selling agents Placement Agent and each person, if any, any person who controls the Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, expense, liability, damage or claim (including reasonable attorneys’ fees, the reasonable cost of investigation and the reasonable costs and expenses of enforcing this indemnity) which, jointly or severally, the Placement Agent or any controlling person may incur under the Securities Act, the Exchange Act or otherwise, insofar as follows: such loss, expense, liability, damage or claim arises out of or is based upon (1) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment theretothereof), any Issuer Free Writing Prospectus that the Company has filed or was required to file with the Commission or the Prospectus (the term Prospectus for the purpose of this Section 10 being deemed to include the Prospectus as of its date and as amended or supplemented by the Company), (2) any omission or alleged omission therefrom to state a material fact required to be stated in any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged omission from any such Issuer Free Writing Prospectus or Prospectus of a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading; except, in the case of each of clauses (1), (2) and (3), insofar as any such loss, expense, liability, damage or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out (in the case of any untrue statement or alleged untrue statement of a material fact included in the Prospectus and any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements thereinProspectus, in the light of the circumstances under which they were made, ) not misleading; (2) against any and all loss, liability, claim, damage and expense whatsoever, as incurredin each such case, to the extent of contained in and in conformity with information furnished in writing by the aggregate amount paid Placement Agent to the Company expressly for use therein (that information being limited to that described in settlement of Section 10(b) hereof). The indemnity agreement set forth in this Section 10(a) shall be in addition to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, that, (subject to Section 10(e) below) any such settlement is effected with the written consent of liability which the Company, the Operating Partnership and the Advisor may otherwise have. If any action is brought against the Placement Agent or any controlling person in respect of which written consent indemnity may be sought against the Company, the Operating Partnership and the Advisor pursuant to the foregoing paragraph of this Section 10(a), the Placement Agent shall not be unreasonably withheld; and (3) against any and all expense whatsoeverpromptly notify the Company, the Operating Partnership or the Advisor, as incurred (the case may be, in writing of the institution of such action, and the Company, the Operating Partnership or the Advisor, as the case may be, shall if it so elects, assume the defense of such action, including the fees and disbursements employment of counsel chosen by the Agent) reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) aboveand payment of expenses; provided, however, that this indemnity agreement shall any failure or delay to so notify the Company or the Operating Partnership, as the case may be, will not apply to relieve the Company, the Operating Partnership or the Advisor of any lossobligation hereunder, liability, claim, damage or expense except to the extent arising out that their ability to defend is materially prejudiced by such failure or delay. The Placement Agent or such controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Placement Agent or such controlling person unless the employment of such counsel shall have been authorized in writing by the Company, the Operating Partnership or the Advisor, as the case may be, in connection with the defense of such action, or the Company, the Operating Partnership or the Advisor, as the case may be, shall not have employed counsel reasonably satisfactory to the Placement Agent or such controlling person, as the case maybe, to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to the Company, the Operating Partnership or the Advisor (in which case neither the Company, the Operating Partnership, nor the Advisor shall have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the Company, the Operating Partnership or the Advisor, as the case may be, and paid as incurred (it being understood, however, that neither the Company, the Operating Partnership, nor the Advisor shall be liable for the expenses of more than one separate firm of attorneys for the Placement Agent or such controlling persons in any one action or series of related actions in the same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, neither the Company, the Operating Partnership, nor the Advisor shall be liable for any settlement of any untrue statement such claim or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration Statement (or any amendment thereto), or in any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto)action effected without its consent.