Common use of Indemnification by the Partnership Clause in Contracts

Indemnification by the Partnership. The Partnership shall, to the fullest extent lawful, reimburse, indemnify, defend and hold each of Operator and its Affiliates and their respective directors, managers, officers, employees and agents (the “Operator Indemnified Parties”), harmless of and from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever (including claims for personal injury, death or property damage and including reasonable attorneys’ fees and court costs) (each a “Loss” and collectively, “Losses”) suffered by any Operator Indemnified Party as a result of, caused by, or arising out of (a) any breach by the Partnership of this Agreement and (b) any action, suit, claim, demand or proceeding commenced by a Third Party relating to (i) the acts or omissions by any of Operator Indemnified Parties (A) in connection with providing or failing to provide the Services (including a breach by Operator of this Agreement), except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) or (B) relating to actions or omissions by any of Operator Indemnified Parties performed or omitted at the direction of the Partnership, except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) and (ii) the Partnership’s gross negligence or willful misconduct. THE REIMBURSEMENT, INDEMNITY, DEFENSE, AND HOLD HARMLESS RIGHTS SET FORTH IN THIS SECTION 5.3 SHALL BE APPLICABLE EVEN IF SUCH LOSSES AROSE IN WHOLE OR IN PART FROM THE ACTIVE, PASSIVE, SOLE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OR OTHER FAULT OF ANY OPERATOR INDEMNIFIED PARTY, BUT EXCLUDING THOSE LOSSES THAT ARE CAUSED BY THE WILLFUL MISCONDUCT OR, SUBJECT TO SECTION 5.4(B), GROSS NEGLIGENCE OF ANY OPERATOR INDEMNIFIED PARTY OR THE INTENTIONAL OR WILLFUL BREACH BY OPERATOR OF THIS AGREEMENT, IN EACH CASE, AS ESTABLISHED BY A FINAL, NON-APPEALABLE AND BINDING DECISION OF A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH SECTION 7.1.

Indemnification by the Partnership. The (a) To the fullest extent permitted by applicable Law, the Partnership shallshall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Indemnified Party, each of which shall be a third party beneficiary of this Agreement solely for purposes of this Article 7, from and against any Loss incurred by them for any act or omission taken or suffered by each Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with the Partnership business, except that there shall be no indemnification for (i) any act or omission of that Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Indemnified Party pursuant to Section 5.3(b)(iv) or the Losses related thereto. (b) Prior to any Indemnified Party seeking indemnification from the Partnership pursuant to Section 7.2(a) hereof, such Indemnified Party shall seek payment, to the fullest extent lawfulreadily available, reimburse, indemnify, defend and hold each under any insurance policy of Operator and the Partnership or its Affiliates and their respective directors, managers, officers, employees and agents Subsidiaries (or which provides coverage to the “Operator Indemnified Parties”Partnership and/or its Subsidiaries), harmless and the General Partner shall reasonably cooperate with any such Indemnified Party in seeking such payment. (c) To the extent that a Partner provides indemnification to any Indemnified Party affiliated with such Partner with respect to any Loss for which such Indemnified Party otherwise would be entitled to indemnification from the Partnership pursuant to Section 7.2(a), such Partner shall be entitled to indemnification from the Partnership for such Losses of and from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever (including claims for personal injury, death or property damage and including reasonable attorneys’ fees and court costs) (each a “Loss” and collectively, “Losses”) suffered by any Operator such Indemnified Party as required hereunder. (d) Except as otherwise provided herein, the satisfaction of any indemnification obligation pursuant to Section 7.2(a) or Section 7.2(c) hereof shall be from and limited to the Partnership’s assets. No Partner shall have any personal liability on account of the Partnership’s indemnification obligations pursuant to Section 7.2(a) or Section 7.2(c). (e) If an Indemnified Party seeks indemnification from the Partnership pursuant to Section 7.2(a) or Section 7.2(c), it shall provide Notice thereof to the Partnership and shall present to the Partnership any proposed settlement arrangement giving rise to the indemnification obligation under Section 7.2(a) or Section 7.2(c) for the prior written consent of the Board as a result ofMajor Decision. The Partnership shall not be liable to indemnify an Indemnified Party for any Loss arising from any such settlement arrangement effected without such prior written consent. If the General Partner receives any Notice from an Indemnified Party under this Section 7.2(e), caused bythe General Partner will promptly deliver a copy of such Notice to the Board. (f) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 7.2(a) or Section 7.2(c) shall be advanced by the Partnership prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder. Notwithstanding anything to the contrary in this Section 7.2(f), the Partnership shall not advance expenses to an Indemnified Party (i) in connection with any action brought by the Partnership to enforce the obligations of a Partner under this Agreement, or in the case of the General Partner, under the Asset Management Agreement or any other Related Party Agreement or (ii) with respect to a proceeding initiated or brought voluntarily by or on behalf of such Indemnified Party and not by way of defense, except with respect to a proceeding brought to establish or enforce a right to indemnification under this Agreement. No indemnification shall be given for expenses in connection with a proceeding brought by the Partnership to the extent the Indemnified Party is found liable on any portion of the claims in such proceeding. The indemnification of any Indemnified Party in respect of its performance of services for the Partnership or any Subsidiary pursuant to property management agreements, leasing agreements or other agreements, including the Asset Management Agreement, shall not permit duplicate recovery by any such Indemnified Party under such agreement(s) and this Agreement. (g) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a Notice of claim therefor has been received by the Partnership, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim. (h) The indemnification provided by this Article 7 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Partnership, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity. (i) An Indemnified Party shall not be denied indemnification in whole or in part under this Article 7 because the Indemnified Party had an interest in the transaction with respect to which the indemnification applies, so long as such transaction did not constitute a Bad Act and was otherwise permitted, or not restricted, by the terms of this Agreement. (j) Any repeal, modification or amendment of any provision of this Article 7 shall not adversely affect any right or protection of any Person existing at the time of such repeal, modification or amendment. The indemnification obligations of the Partnership pursuant to this Article 7 shall survive termination, liquidation, dissolution and winding up of the Partnership, and, for purposes of this Article 7, the Partnership shall be treated as continuing in existence. (k) The Partnership shall have the power to purchase and maintain insurance or other financial arrangements on behalf of any Indemnified Party or any other Person who is or was an agent of the Partnership against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of (a) any breach by the Partnership of this Agreement and (b) any actionsuch Person’s status, suitas applicable, claim, demand or proceeding commenced by a Third Party relating to (i) the acts or omissions by any of Operator Indemnified Parties (A) in connection with providing or failing to provide the Services (including a breach by Operator of this Agreement), except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator as an Indemnified Party or an agent, whether or not the intentional or willful breach by Operator Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) or (B) relating to actions or omissions by any of Operator Indemnified Parties performed or omitted at the direction of the Partnership, except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party Article 7 or the intentional or willful breach by Operator of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) and (ii) the Partnership’s gross negligence or willful misconduct. THE REIMBURSEMENT, INDEMNITY, DEFENSE, AND HOLD HARMLESS RIGHTS SET FORTH IN THIS SECTION 5.3 SHALL BE APPLICABLE EVEN IF SUCH LOSSES AROSE IN WHOLE OR IN PART FROM THE ACTIVE, PASSIVE, SOLE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OR OTHER FAULT OF ANY OPERATOR INDEMNIFIED PARTY, BUT EXCLUDING THOSE LOSSES THAT ARE CAUSED BY THE WILLFUL MISCONDUCT OR, SUBJECT TO SECTION 5.4(B), GROSS NEGLIGENCE OF ANY OPERATOR INDEMNIFIED PARTY OR THE INTENTIONAL OR WILLFUL BREACH BY OPERATOR OF THIS AGREEMENT, IN EACH CASE, AS ESTABLISHED BY A FINAL, NON-APPEALABLE AND BINDING DECISION OF A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH SECTION 7.1Act.

Indemnification by the Partnership. The (a) To the fullest extent permitted by applicable Law, the Partnership shallshall and does hereby agree to indemnify and hold harmless and pay all judgments and claims against any Indemnified Party, each of which shall be a third-party beneficiary of this Agreement solely for purposes of this Article 7, from and against any Loss incurred by them for any act or omission taken or suffered by each Indemnified Party (including any act or omission performed or omitted by any of them in good faith reliance upon and in accordance with the opinion or advice of experts, including of legal counsel as to matters of law, of accountants as to matters of accounting, or of investment bankers or appraisers as to matters of valuation; provided, that such Persons were selected and monitored with reasonable care) in connection with the Partnership business, except that there shall be no indemnification for (i) any act or omission of that Indemnified Party that constitutes a Bad Act or (ii) any indemnification obligation of the Indemnified Party pursuant to Section 5.3(b)(iv) or the Losses related thereto. (b) Prior to any Indemnified Party seeking indemnification from the Partnership pursuant to Section 7.2(a) hereof, such Indemnified Party shall seek payment, to the fullest extent lawfulreadily available, reimburse, indemnify, defend and hold each under any insurance policy of Operator and the Partnership or its Affiliates and their respective directors, managers, officers, employees and agents Subsidiaries (or which provides coverage to the “Operator Indemnified Parties”Partnership and/or its Subsidiaries), harmless and the General Partner shall reasonably cooperate with any such Indemnified Party in seeking such payment. (c) To the extent that a Partner provides indemnification to any Indemnified Party affiliated with such Partner with respect to any Loss for which such Indemnified Party otherwise would be entitled to indemnification from the Partnership pursuant to Section 7.2(a), such Partner shall be entitled to indemnification from the Partnership for such Losses of and from any and all expenses, losses, damages, liabilities, demands, charges and claims of any nature whatsoever (including claims for personal injury, death or property damage and including reasonable attorneys’ fees and court costs) (each a “Loss” and collectively, “Losses”) suffered by any Operator such Indemnified Party as required hereunder. 51 (d) Except as otherwise provided herein, the satisfaction of any indemnification obligation pursuant to Section 7.2(a) or Section 7.2(c) hereof shall be from and limited to the Partnership’s assets. No Partner shall have any personal liability on account of the Partnership’s indemnification obligations pursuant to Section 7.2(a) or Section 7.2(c). (e) If an Indemnified Party seeks indemnification from the Partnership pursuant to Section 7.2(a) or Section 7.2(c), it shall provide Notice thereof to the Partnership and shall present to the Partnership any proposed settlement arrangement giving rise to the indemnification obligation under Section 7.2(a) or Section 7.2(c) for the prior written consent of the Board as a result ofMajor Decision. The Partnership shall not be liable to indemnify an Indemnified Party for any Loss arising from any such settlement arrangement effected without such prior written consent. If the General Partner receives any Notice from an Indemnified Party under this Section 7.2(e), caused bythe General Partner will promptly deliver a copy of such Notice to the Board. (f) Expenses reasonably incurred by an Indemnified Party in defense or settlement of any claim that may be subject to a right of indemnification pursuant to Section 7.2(a) or Section 7.2(c) shall be advanced by the Partnership prior to the final disposition thereof upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount to the extent that it shall be determined upon final decision, judgment or order (whether or not subject to appeal) that such Indemnified Party is not entitled to be indemnified hereunder. Notwithstanding anything to the contrary in this Section 7.2(f), the Partnership shall not advance expenses to an Indemnified Party (i) in connection with any action brought by the Partnership to enforce the obligations of a Partner under this Agreement, or in the case of the General Partner, under the Asset Management Agreement or any other Related Party Agreement or (ii) with respect to a proceeding initiated or brought voluntarily by or on behalf of such Indemnified Party and not by way of defense, except with respect to a proceeding brought to establish or enforce a right to indemnification under this Agreement. No indemnification shall be given for expenses in connection with a proceeding brought by the Partnership to the extent the Indemnified Party is found liable on any portion of the claims in such proceeding. The indemnification of any Indemnified Party in respect of its performance of services for the Partnership or any Subsidiary pursuant to property management agreements, leasing agreements or other agreements, including the Asset Management Agreement, shall not permit duplicate recovery by any such Indemnified Party under such agreement(s) and this Agreement. (g) If a claim for indemnification or payment of reasonable expenses hereunder is not paid in full within twenty (20) days after a Notice of claim therefor has been received by the Partnership, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expenses of prosecuting such claim. (h) The indemnification provided by this Article 7 shall be in addition to any other rights to which an Indemnified Party may be entitled under any agreement, pursuant to any action of the Partnership, as a matter of Law or otherwise, and shall continue as to an Indemnified Party who has ceased to serve in such capacity. (i) An Indemnified Party shall not be denied indemnification in whole or in part under this Article 7 because the Indemnified Party had an interest in the transaction with respect to which the indemnification applies, so long as such transaction did not constitute a Bad Act and was otherwise permitted, or not restricted, by the terms of this Agreement. (j) Any repeal, modification or amendment of any provision of this Article 7 shall not adversely affect any right or protection of any Person existing at the time of such repeal, modification or amendment. The indemnification obligations of the Partnership pursuant to this Article 7 shall survive termination, liquidation, dissolution and winding up of the Partnership, and, for purposes of this Article 7, the Partnership shall be treated as continuing in existence. (k) The Partnership shall have the power to purchase and maintain insurance or other financial arrangements on behalf of any Indemnified Party or any other Person who is or was an agent of the Partnership against any liability asserted against such Person and incurred by such Person in any such capacity, or arising out of (a) any breach by the Partnership of this Agreement and (b) any actionsuch Person’s status, suitas applicable, claim, demand or proceeding commenced by a Third Party relating to (i) the acts or omissions by any of Operator Indemnified Parties (A) in connection with providing or failing to provide the Services (including a breach by Operator of this Agreement), except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator as an Indemnified Party or an agent, whether or not the intentional or willful breach by Operator Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) or (B) relating to actions or omissions by any of Operator Indemnified Parties performed or omitted at the direction of the Partnership, except to the extent such Losses are caused by the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party Article 7 or the intentional or willful breach by Operator of this Agreement (in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) and (ii) the Partnership’s gross negligence or willful misconduct. THE REIMBURSEMENT, INDEMNITY, DEFENSE, AND HOLD HARMLESS RIGHTS SET FORTH IN THIS SECTION 5.3 SHALL BE APPLICABLE EVEN IF SUCH LOSSES AROSE IN WHOLE OR IN PART FROM THE ACTIVE, PASSIVE, SOLE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OR OTHER FAULT OF ANY OPERATOR INDEMNIFIED PARTY, BUT EXCLUDING THOSE LOSSES THAT ARE CAUSED BY THE WILLFUL MISCONDUCT OR, SUBJECT TO SECTION 5.4(B), GROSS NEGLIGENCE OF ANY OPERATOR INDEMNIFIED PARTY OR THE INTENTIONAL OR WILLFUL BREACH BY OPERATOR OF THIS AGREEMENT, IN EACH CASE, AS ESTABLISHED BY A FINAL, NON-APPEALABLE AND BINDING DECISION OF A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH SECTION 7.1Act.

Indemnification by the Partnership. The Partnership shallagrees to indemnify each Purchaser and its Representatives (collectively, to the fullest extent lawful“Purchaser Indemnified Parties”) from costs, reimburselosses, indemnifyliabilities, defend damages or expenses of any kind or nature whatsoever, and hold each of Operator and its Affiliates and their respective directors, managers, officers, employees and agents (the “Operator Indemnified Parties”), them harmless of and from against any and all expensesactions, suits, proceedings (including any investigations, litigation or inquiries), demands and causes of action, and, in connection therewith, promptly upon demand, pay or reimburse each of them for, any and all costs, losses, damages, liabilities, demands, charges and claims liabilities or expenses of any kind or nature whatsoever (including claims for personal injuryincluding, death or property damage and including reasonable attorneys’ without limitation, legal fees and court costs) (each a “Loss” and collectivelyother expenses reasonably incurred in connection with any suit, “Losses”) suffered by action or proceeding or any Operator claim asserted), joint or several, that the Purchaser Indemnified Party may incur, whether or not involving a Third-Party Claim, insofar as a result such loss, claim, damage or liability arises out of, caused byor is based upon, or arising out of (a) the failure of any breach of the representations or warranties made by the Partnership of this Agreement contained herein to be true and correct in all material respects (b) any actionother than those representations and warranties contained in Section 3.01, suitSection 3.02, claimSection 3.07, demand Section 3.10 Section 3.12 or proceeding commenced Section 3.13 or other representations and warranties that are qualified by a Third Party relating to (i) the acts materiality or omissions by any of Operator Indemnified Parties (A) in connection with providing or failing to provide the Services (including a breach by Operator of this Agreement)Material Adverse Effect, except to the extent such Losses are caused by the willful misconduct orwhich, subject to Section 5.4(b), gross negligence of any Operator Indemnified Party or the intentional or willful breach by Operator of this Agreement (in each case, shall be true and correct in all respects) when made as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) the date hereof or (Bb) relating to actions or omissions by the breach of any of Operator Indemnified Parties performed or omitted at the direction covenants of the PartnershipPartnership contained herein, except provided that, in the case of the immediately preceding clause (a), such claim for indemnification is made prior to the extent expiration of the survival period of such Losses are caused by representation or warranty; provided further that (x) for purposes of determining when an indemnification claim has been made, the willful misconduct or, subject to Section 5.4(b), gross negligence of any Operator date upon which a Purchaser Indemnified Party or shall have given notice (stating in reasonable detail the intentional or willful breach by Operator basis of the claim for indemnification) to the Partnership shall constitute the date upon which such claim has been made and (y) the aggregate liability of the Partnership (i) to each Purchaser pursuant to this Agreement (Section 5.01 shall not be greater in each case, as established by a final, non-appealable and binding decision of a court of competent jurisdiction in accordance with Section 7.1) amount than such Purchaser’s respective Funding Obligation and (ii) to all Purchasers pursuant to this Section 5.01 shall not exceed the Partnership’s gross negligence Total Funding Obligation. To the fullest extent permitted by Law, no Purchaser Indemnified Party shall be entitled to recover indirect, exemplary, speculative or willful misconduct. THE REIMBURSEMENTpunitive damages under this Section 5.01; provided, INDEMNITYhowever, DEFENSE, AND HOLD HARMLESS RIGHTS SET FORTH IN THIS SECTION 5.3 SHALL BE APPLICABLE EVEN IF SUCH LOSSES AROSE IN WHOLE OR IN PART FROM THE ACTIVE, PASSIVE, SOLE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OR OTHER FAULT OF ANY OPERATOR INDEMNIFIED PARTY, BUT EXCLUDING THOSE LOSSES THAT ARE CAUSED BY THE WILLFUL MISCONDUCT OR, SUBJECT TO SECTION 5.4(B), GROSS NEGLIGENCE OF ANY OPERATOR INDEMNIFIED PARTY OR THE INTENTIONAL OR WILLFUL BREACH BY OPERATOR OF THIS AGREEMENT, IN EACH CASE, AS ESTABLISHED BY A FINAL, NONthat such limitation shall not prevent any Purchaser Indemnified Party from recovering under this Section 5.01 for any such damages to the extent that such damages are payable to a third party in connection with any Third-APPEALABLE AND BINDING DECISION OF A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH SECTION 7.1Party Claims.