Common use of Indemnification by the Partners Clause in Contracts

Indemnification by the Partners. The Partners agree subsequent to the Closing to indemnify and hold Buyer and its subsidiaries and Affiliates and persons serving as officers, directors, members, partners, stockholders, or employees thereof or, to the extent the Loss claimed is suffered by the LLC, the LLC (individually a "Buyer Indemnified Party" and collectively the "Buyer Indemnified Parties") harmless from and against any damages, liabilities, losses (including, without limitation, diminution in value), taxes, fines, penalties, costs, and expenses (including, without limitation, reasonable fees and expenses of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing), and if the indemnified party is the LLC or is claiming damage or harm through its interest in the LLC, net of any insurance proceeds actually received by the LLC on account of insurance policies the premiums on which were paid by the Company prior to the Conversion or by the LLC out of Operating Cash Flow (as defined in the LLC Agreement), less the aggregate premiums paid by the LLC for such insurance (collectively, "Losses") which may be sustained or suffered by any of them arising out of, based upon any of the following matters: (a) fraud, intentional misrepresentation or any breach of any representation, warranty or covenant of the Company or any Partner under this Agreement or under any agreement, document or instrument contemplated hereby, or in any certificate, schedule or exhibit delivered pursuant hereto or thereto, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting such a breach; provided, however, that for purposes of determining any such breach no effect shall be given to any exception in any such representation, warranty or covenant relating to knowledge, materiality, or a Material Adverse Effect; and (b) the activities, conduct, business or operation of the Company, the Private Funds, the Mutual Funds or the Offshore Funds prior to the Closing, or arising out of facts, events or circumstances regarding the Company, the Private Funds, the Mutual Funds or the Offshore Funds existing prior to the Closing.

Indemnification by the Partners. The From and after the Closing, ------------------------------- the Partners agree subsequent to the Closing to indemnify shall indemnify, defend and hold harmless Buyer and its subsidiaries and Affiliates and persons serving as officers, directorsrespective Affiliates, members, partners, stockholdersemployees, or employees thereof orrepresentatives and agents, to the extent the Loss claimed is suffered by the LLCand their respective successors and assigns (collectively, the LLC (individually a "Indemnified Buyer Indemnified Party" and collectively the "Buyer Indemnified PartiesPersons") harmless from and against any and all claims, actions, suits, demands, losses, damages, liabilities, losses (includingobligations, without limitationjudgments, diminution in value)settlements, taxes, finesawards, penalties, costscosts or expenses, and expenses (including, without limitation, reasonable attorneys' fees and expenses of counsel) of any kind or nature whatsoever (whether or not arising out of third-party claims and including all amounts paid in investigation, defense or settlement of the foregoing), and if the indemnified party is the LLC or is claiming damage or harm through its interest in the LLC, net of any insurance proceeds actually received by the LLC on account of insurance policies the premiums on which were paid by the Company prior to the Conversion or by the LLC out of Operating Cash Flow (as defined in the LLC Agreement), less the aggregate premiums paid by the LLC for such insurance (collectively, "Losses") which may be sustained incurred or suffered by any Indemnified Buyer Person that results from, relates to or arises out of them arising out of, based upon any of the following matters: (a) fraudclaims (excluding, intentional misrepresentation however, claims that are actually known to Buyer prior to the Close of Escrow) made by any Tenant or Anchor under the Leases, any breach of any representation, warranty or covenant of Party to the Company or any Partner REA under this Agreement or under any agreement, document or instrument contemplated hereby, or in any certificate, schedule or exhibit delivered pursuant hereto or theretothe REA, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting such a breach; provided, howeverParty under those Service Contracts assigned to Buyer, that for purposes of determining any such breach no effect shall be given relate to any exception in any such representation, warranty actions or covenant relating to knowledge, materialityevents first occurring, or a Material Adverse Effect; and obligations first accruing, prior to the Closing Date, (b) the activitiesany event, conduct, business occurrence or operation of the Company, the Private Funds, the Mutual Funds or the Offshore Funds accident at any time prior to the ClosingClosing Date relating to the Property or the Partnership excluding events, occurrences or accidents not covered by insurance and actually known to Buyer, or arising out (c) the Pending Claims as are more particularly described on Exhibit "X" attached hereto. This Section 13.15 shall survive the Close of facts, events or circumstances regarding Escrow. Claims against the Company, the Private Funds, the Mutual Funds Partnership or the Offshore Funds existing prior to Property arising from CAM charges, Rentals, any construction contract or service agreement or operations expenses shall be borne by the ClosingPartners regardless of any knowledge of Buyer.

Indemnification by the Partners. The Partners agree subsequent to the Closing to indemnify Each Partner shall, severally and not jointly, indemnify, defend and hold Buyer harmless, the Company and its subsidiaries each Affiliate of the Company and Affiliates their respective directors and persons serving as officers (and the directors, officers, directorsaffiliates and controlling persons thereof, membersas defined in Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, partnersas amended (the "Exchange Act")), stockholders, or employees thereof or, to the extent the Loss claimed is suffered by the LLC(collectively, the LLC (individually a "Buyer Indemnified Party" and collectively the "Buyer Company Indemnified Parties") harmless from and ), against any damagesand all losses, claims, damages or liabilities, losses (including, without limitation, diminution in value), taxes, fines, penalties, costs, and expenses (includingto which any such Company Indemnified Party may become subject under the Securities Act, without limitationcommon law or otherwise, reasonable fees and expenses of counselinsofar as such losses, claims, damages or liabilities,(or actions or proceedings in respect thereof, whether commenced or threatened) of any kind or nature whatsoever (whether or not arising arise out of third-party claims or are based upon any statement in or omission from the Registration Statement, any preliminary, final or summary prospectus contained therein, or any amendment or supplement, if such statement or omission was made in reliance upon and including all in conformity with written information with respect to the Partner furnished to the Company by such Partner specifically for use in the preparation of the Registration Statement, preliminary, final or summary prospectus or amendment or supplement, or a document incorporated by reference into any of the foregoing; PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 5.28 shall not apply to amounts paid in investigation, defense or settlement of any loss, claim, damage, liability or action arising if such settlement is effected without the foregoingconsent of the Partner (which consent shall not be unreasonably withheld), . Such indemnity shall remain in full force and if the indemnified party is the LLC or is claiming damage or harm through its interest in the LLC, net effect regardless of any insurance proceeds actually received investigation made by the LLC or on account of insurance policies the premiums on which were paid by the Company prior to the Conversion or by the LLC out of Operating Cash Flow (as defined in the LLC Agreement), less the aggregate premiums paid by the LLC for such insurance (collectively, "Losses") which may be sustained or suffered by any of them arising out of, based upon any of the following matters: (a) fraud, intentional misrepresentation or any breach of any representation, warranty or covenant behalf of the Company or any Partner under this Agreement or under any agreement, document or instrument contemplated hereby, or in any certificate, schedule or exhibit delivered pursuant hereto or thereto, or by reason other Company Indemnified Party. In no event shall the liability of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting such a breach; provided, however, that for purposes of determining any such breach no effect shall Partner hereunder be given to any exception greater in any such representation, warranty or covenant relating to knowledge, materiality, or a Material Adverse Effect; and (b) amount than the activities, conduct, business or operation dollar amount of the Company, proceeds received by such Partner upon the Private Funds, sale of the Mutual Funds or the Offshore Funds prior Company Common Stock giving rise to the Closing, or arising out of facts, events or circumstances regarding the Company, the Private Funds, the Mutual Funds or the Offshore Funds existing prior to the Closingsuch indemnity obligation.

Indemnification by the Partners. The Partners agree subsequent (a) Subject to Section 9.1(a), the Closing to Partners, jointly and severally, shall hold harmless and indemnify each of the Buyers, the Partnership and hold Buyer and its subsidiaries and their Affiliates and persons serving as their respective directors, officers, directorsemployees, membersagents, partners, stockholders, or employees thereof or, to Representatives and any successors and assigns of the extent the Loss claimed is suffered by the LLCforegoing Persons (collectively, the LLC (individually a "Buyer Indemnified Party" and collectively the "Buyer Indemnified PartiesBUYER INDEMNITEES") harmless from and against any damages, liabilities, losses (including, without limitation, diminution in value), taxes, fines, penalties, costsagainst, and expenses shall compensate and reimburse each of the Buyer Indemnitees for, any Damages that are suffered or incurred by any of the Buyer Indemnitees or to which any of the Buyer Indemnitees may otherwise become subject at any time (including, without limitation, reasonable fees and expenses regardless of counsel) of any kind or nature whatsoever (whether or not arising out of such Damages relate to any third-party claims claim) and including all amounts paid in investigation, defense which arise from or settlement of the foregoing), and if the indemnified party is the LLC or is claiming damage or harm through its interest in the LLC, net of any insurance proceeds actually received by the LLC on account of insurance policies the premiums on which were paid by the Company prior to the Conversion or by the LLC out of Operating Cash Flow (as defined in the LLC Agreement), less the aggregate premiums paid by the LLC for such insurance (collectively, "Losses") which may be sustained or suffered by any of them arising out a result of, based upon any of the following mattersor are connected with: (ai) fraudany inaccuracy in or breach of any representation or warranty made by any Partner set forth in this Agreement, intentional misrepresentation in the Partners' Compliance Certificate or in any other Transactional Agreement; (ii) any breach of any representationcovenant or obligation of any Partner and the Partnership (including the covenants set forth in Sections 4 and 5, warranty but specifically excluding the covenant contained in Section 5.9) contained in this Agreement; (iii) except as set forth in Section 1.4 hereto, any Taxes owed by the Partners or covenant the Partnership that relate to any period prior to or as of the Company or any Partner under this Agreement or under any agreement, document or instrument contemplated hereby, or in any certificate, schedule or exhibit delivered pursuant hereto or thereto, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting such a breach; provided, however, that for purposes of determining any such breach no effect shall be given to any exception in any such representation, warranty or covenant relating to knowledge, materiality, or a Material Adverse EffectClosing Date; and (iv) any Proceeding commenced by any Buyer Indemnitee for the purpose of enforcing any of its rights under this Section 9.2. (b) The Partners' indemnification obligation under this Section 9.2 shall be effective only when the activitiesaggregate amount of all Damages to the Buyer Indemnitees equals or exceeds the threshold amount of $250,000, conductin which case the Partners shall be liable for the entire amount of such Damages to the Buyer Indemnitees and not merely the portion that exceeds $250,000; PROVIDED, business or operation that in no event shall the Partners be liable under this Section 9.2 for Damages that in the aggregate exceed an amount equal to the Purchase Price. No Buyer Indemnitee shall be entitled to assert any right of indemnification under this Section 9.2 after the one (1) year anniversary of the CompanyClosing Date (other than claims for indemnification for Damages suffered or incurred as a result of an inaccuracy or breach of the representations and warranties contained in Section 2.15 of this Agreement, which claims may be brought until the Private Funds30th day after the expiration of the applicable statute of limitations (including any waiver, mitigation or extension thereof)); PROVIDED, HOWEVER, that if there shall be any pending claim for indemnification for which any Buyer Indemnitee has given notice to the Mutual Funds Partners on or the Offshore Funds prior to the Closingone (1) anniversary of the Closing Date, or arising out of facts, events or circumstances regarding such Buyer Indemnitee shall continue to have the Company, the Private Funds, the Mutual Funds or the Offshore Funds existing prior right to the Closingbe indemnified with respect to such matter.

Indemnification by the Partners. The Partners agree subsequent (a) Except as otherwise provided in Article 9 below with respect to tax matters and subject to the Closing to further provisions hereof, the Partners, jointly and severally, shall pay, defend, indemnify and hold Buyer Regency, Merger Sub, and its subsidiaries and their respective Affiliates and persons serving as respective successors and permitted assigns, and their respective officers, directors, membersmanagers, partnersemployees, stockholdersagents and representatives, or employees thereof orand each of their heirs, to the extent the Loss claimed is suffered by the LLCexecutors, the LLC successors and assigns (individually a "Buyer Indemnified Party" and collectively the "Buyer “Regency Indemnified Parties") ”), harmless from and against and in respect of: (i) Any and all actual damages relating to any damagesdemands, liabilitiesclaims, losses (includinglawsuits, without limitationcauses of action, diminution in value)losses, taxes, fines, penalties, costs, investigations and expenses (including, without limitation, reasonable fees and expenses of counsel) of any kind or nature whatsoever other proceedings (whether or not arising out of third-party claims before a court or Governmental Agency and including all amounts paid in investigation, defense whether or settlement of the foregoingnot brought by a third party), including reasonable attorney’s fees, court costs and if other documented out-of-pocket expenses incurred in investigating or preparing for the indemnified party is the LLC or is claiming damage or harm through its interest in the LLC, net of any insurance proceeds actually received by the LLC on account of insurance policies the premiums on which were paid by the Company prior to the Conversion or by the LLC out of Operating Cash Flow (as defined in the LLC Agreement), less the aggregate premiums paid by the LLC for such insurance foregoing (collectively, "Losses") which may be sustained or suffered by any “Damages”), that arise out of them arising out of, based upon any of the following matters: (a) fraud, intentional misrepresentation or any breach of any representation, warranty or covenant of the covenants or other agreements of CDM and of either Partner in this Agreement (other than the covenants, agreements and indemnities in Article 9, which shall be subject to Article 9); (ii) Damages that arise out of any breach of the representations and warranties of CDM and of either Partner in this Agreement (other than in Section 3.10, which shall be subject to Article 9); (iii) The amount of any Indebtedness of CDM as of the Closing Date, and the amount required to be paid under Compression Operating Leases to acquire good and valid title to all equipment covered thereby, free and clear of all Liens, in each case that was not included in the calculation of the Payoff Amount, and any and all reasonable and documented out-of-pocket costs and expenses incurred by Regency or the Surviving Company and their respective Affiliates in connection with extinguishing any such Indebtedness and/or acquiring such equipment; and (iv) Damages that relate in any way to the ownership by CDM prior to Closing, or the liabilities and obligations, of CDM MAX, LLC, whether because of the prior ownership thereof by CDM, or its operations or business activities, or otherwise, other than any Damages resulting solely from, and in accordance with, the ongoing performance of the compressor service agreements between CDM and CDM MAX, LLC entered into in the ordinary course of business and consistent with past practice for service agreements generally (but, as to any such service agreements existing prior to the Closing, only if such agreements were listed in Section 3.18 of the CDM Disclosure Schedule). (b) The foregoing obligation to indemnify the Regency Indemnified Parties shall be subject to each of the following qualifications and limitations: (i) The Partners’ indemnification obligations under Sections 8.2(a)(i) and (ii) shall terminate upon expiration of the applicable Survival Period. (ii) No reimbursement or payment for any Damages asserted against the Partners under Section 8.2(a)(ii) above (other than in connection with any of the Partner Specified Representations, which shall not be subject to any of the limits in this clause (ii), and other than the representations and warranties in Section 3.10, which shall be subject to Section 9.1(a)) shall be required unless and until the cumulative aggregate amount of such Damages equals or exceeds $3,250,000 (the “Partners’ Threshold”), in which case the Regency Indemnified Parties shall be entitled to indemnification and then only to the extent that the cumulative aggregate amount of Damages, as finally determined, exceeds $3,250,000; provided that any Damages that individually (which, for this purpose, shall be combined with all Damages based upon the same or substantially related set of facts) total less than $50,000 (“De Minimis Regency Losses”) shall be excluded in their entirety and the Partners in no event shall have any liability hereunder to any Regency Indemnified Parties for any such De Minimis Regency Losses. (iii) For all determinations made after the Closing regarding the existence of a breach of any of the Partner’s or CDM’s representations and warranties in Articles 2 or 3 (other than Section 3.10) for the purposes of Section 8.2(a)(ii) or the amount of any Damages with respect thereto, all such representations and warranties that are qualified by materiality or by reference to CDM Material Adverse Effect shall be deemed to be not so qualified. (iv) No reimbursement or payment for any Damages asserted against the Partners under Section 8.2(a)(iv) above shall be required unless and until the cumulative aggregate amount of such Damages equals or exceeds $500,000, in which case the Regency Indemnified Parties shall be entitled to indemnification and then only to the extent that the cumulative aggregate amount of such Damages, as finally determined, exceeds $500,000. (v) Notwithstanding anything to the contrary contained in this Agreement, the aggregate amount required to be paid by the Partners to the Regency Indemnified Parties for all Damages asserted against the Partners under Section 8.2(a)(i) (but solely as it relates to covenants and agreements that by their terms do not contemplate performance after the Closing; all other covenants and agreements shall be subject only to the limit specified in clause (vi)), Section 8.2(a)(ii) (other than in connection with any of the Partner Specified Representations, which shall be subject only to the limit specified in clause (vi), and other than the representations and warranties in Section 3.10, which shall be subject to Section 9.1(a)) and Section 8.2(a)(iv) shall not exceed $118,250,000. (vi) The aggregate amount of Damages and other monetary liabilities and obligations for which the Partners are liable under this Agreement shall not exceed the Final Purchase Price. (c) After Closing, except as expressly otherwise provided in Article 9 of this Agreement or in another agreement in writing, the indemnity provided in this Section 8.2 shall be the sole and exclusive remedy of the Regency Indemnified Parties against the Partners at law or in equity under any agreement, document or instrument this Agreement and the transactions contemplated hereby, or in any certificate, schedule or exhibit delivered pursuant hereto or thereto, or by reason of any claim, action or proceeding asserted or instituted growing out of any matter or thing constituting such a breachother than for fraud; provided, however, that the foregoing exclusion for purposes fraud shall not be deemed a waiver of determining any defenses that may be available in respect of actions or claims for fraud, including defenses of statutes of limitations or limitations of damages. The Parties agree to treat any indemnity payment made pursuant to this Section 8.2 as an adjustment to the Final Purchase Price unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code. (d) The Regency Indemnified Party seeking indemnification under Section 8.2 (the “Regency Party”) shall give the Partners prompt written notice of any third party claim that may give rise to any indemnity obligation under this Section, together with the estimated amount of such claim, and the Partners shall have the right to assume the defense of any such breach no effect claim through counsel of their own choosing, by so notifying the Regency Party within 30 days of receipt of the Regency Party’s written notice. Failure of the Regency Party to give prompt notice shall not affect the indemnification obligations hereunder except to the extent of actual prejudice. If the Regency Party desires to participate in, but not control, any such defense assumed by the Partners, it may do so at its sole cost and expense; provided that the Regency Party may have one counsel paid for by the Partners if, in the reasonable opinion of counsel to the Regency Party, a conflict or potential conflict exists between the Partners and the Regency Party that would make such representation advisable. If the Partners fail to assume any such defense, they shall be given liable to any exception in the extent provided under Section 8.2(a) for all reasonable costs and expenses of defending such claim incurred by the Regency Party, including reasonable fees and disbursements of counsel if it is ultimately determined that the Partners are liable for such claim pursuant to the terms of this Agreement. No Partner shall, without the prior written consent of the Regency Party, which consent shall not be unreasonably withheld, delayed, or conditioned, settle, compromise or offer to settle or compromise any such representationclaim or demand on a basis that would result in the imposition of a consent order, warranty injunction or covenant relating to knowledge, materiality, decree that would restrict the future activity or a Material Adverse Effect; and (b) the activities, conduct, business or operation conduct of the Company, Regency Party or any Subsidiary or Affiliate thereof or if such settlement or compromise does not include an unconditional release of the Private Funds, the Mutual Funds or the Offshore Funds prior to the Closing, or Regency Party for any liability arising out of factssuch claim or demand or any related claim or demand. The Regency Party shall not, events without the prior written consent of each of the Partners, which consent shall not be unreasonably withheld, delayed, or circumstances regarding conditioned, settle, compromise or offer to settle or compromise any such claim or demand on a basis that would result in the Companyimposition of a consent order, injunction or decree that would restrict the future activity or conduct of such Partner or any Subsidiary or Affiliate thereof or if such settlement or compromise does not include an unconditional release of such Partner for any liability arising out of such claim or demand or any related claim or demand. (e) The Partners shall not be entitled to assume the defense of such third-party claim if: (i) the third-party claim seeks, in addition to or in lieu of monetary damages, any injunctive or other equitable relief (except where non-monetary relief is merely incidental to a primary claim or claims for monetary damages); (ii) the third-party claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; or (iii) the third-party claim would reasonably be expected to give rise to Damages that are more than twice the amount then indemnifiable by the Partners pursuant to this Article 8; provided that, notwithstanding anything to the contrary in Section 8.2(d), if such expected amount of Damages exceeds the amount then so indemnifiable by the Partners but is less than twice the amount then so indemnifiable, then, subject to a customary joint defense agreement that each of the Partners and the relevant Regency Indemnified Party shall in good faith negotiate and enter into together, the Private FundsPartners and the relevant Regency Indemnified Party shall equally and mutually control the defense of such third party claim, provided, that if such joint defense is prohibited by Applicable Laws, then, with respect to such third-party claim, whoever has the Mutual Funds or greater exposure, as reasonably determined, as between the Offshore Funds existing prior indemnification obligations under Section 8.2 as it relates to the ClosingPartners, on the one hand, and the potential for Damages that are not subject to indemnification under Section 8.2 as it relates to the Regency Indemnified Party, on the other hand, shall be entitled to control the defense of such third party claim. If the Partners are not entitled to assume or share such defense, they may nonetheless participate in such defense at their sole cost and expense.