Common use of Liability for Acts and Omissions Clause in Contracts

Liability for Acts and Omissions. (a) None of the members of the Board of Directors, any Member, any of their Affiliates, nor their members, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, the "Indemnified Parties") shall have any liability, responsibility or accountability in damages or otherwise to any Member or the REIT for, and the REIT agrees to indemnify, pay, protect and hold harmless the Indemnified Parties from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including all costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Indemnified Parties or the REIT) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the REIT in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the REIT, on the part of the Indemnified Parties when acting on behalf of the REIT or on the part of any brokers or agents when acting on behalf of the REIT; provided, however, that each Member shall be liable, responsible and accountable for and shall indemnify, pay, protect and hold harmless the REIT from and against the Excluded Liabilities, and the REIT shall not be liable to any Indemnified Party for, any portion of the Excluded Liabilities; provided, further, however, nothing in this provision shall create personal liability on the part of any Member's Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives. Notwithstanding the foregoing, such indemnification obligation by the REIT shall not apply where an Indemnified Party is seeking indemnity based on a claim or action brought against such Indemnified Party by an officer or director of a Member. If for any reason the foregoing indemnification is unavailable to any Indemnified Party (other than by reason of the fraud, gross negligence, or willful misconduct of such Indemnified Party) or insufficient to hold it harmless, then the REIT shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the REIT on the one hand and such Indemnified Party on the other hand, but also the relative fault of the REIT and such Indemnified Party, as well as any relevant equitable considerations. In any action, suit or proceeding against the REIT or any Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the Indemnified Parties shall have the right to jointly employ, at the expense of the REIT, counsel of the Indemnified Parties' choice in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding, provided that if retention of joint counsel by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense of the REIT, separate counsel of such group of Indemnified Parties' choice in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding. The satisfaction of the obligations of the REIT under this Section 6.03(a) shall be from and limited to the assets of the REIT and no Member shall have any personal liability on account thereof.

Liability for Acts and Omissions. (aA) None No Managing Member nor any of its Affiliates, shareholders, partners, managers, officers, directors, employees, agents or representatives shall have any liability, responsibility or accountability in damages or otherwise to any other Member or the members of Company for, and the Board of DirectorsCompany agrees to indemnify, any pay, protect and hold harmless the Managing Member, any of their and its Affiliates, nor their members, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, the "“Indemnified Parties"”) shall have any liability, responsibility or accountability in damages or otherwise to any Member or the REIT for, and the REIT agrees to indemnify, pay, protect and hold harmless the Indemnified Parties from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Indemnified Parties or the REITCompany) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the REIT Company in any way relating to or arising out of, or alleged by the party bringing the claim to relate to or arise out of, any action or inaction on the part of the REIT, Company on the part of the Indemnified Parties when acting on behalf of the REIT Company (or the Investment) or on the part of any brokers or agents when acting on behalf of the REITCompany (or the Investment); providedprovided that, however, that each the Managing Member shall be liable, responsible and accountable for and shall indemnify, pay, protect and hold harmless the REIT Company from and against (but only with respect to the Excluded Liabilities, Managing Member and the REIT shall not be liable to any Indemnified Party for, any portion of the Excluded Liabilities; provided, further, however, nothing in this provision shall create personal liability on the part of any Member's Affiliates or Parties which are its or their respective membersAffiliates, shareholders, partners, managers, officers, directors, employees, agents and representatives), and the Company shall not be liable to any Indemnified Party for, any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or representativesdisbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Company) and all costs of investigation in connection therewith asserted against the Company which result from an Indemnified Party’s fraud, gross negligence, willful misconduct, bad faith, breach of fiduciary duty or material breach of this Agreement or the payment to or receipt by an Indemnified Party of benefits in violation of this Agreement; provided, however, that nothing in this provision shall create personal liability on the part of any of the Managing Member’s Affiliates or its or their respective shareholders, partners, managers, officers, directors, employees, agents or representatives (except for the Managing Member). Notwithstanding the foregoing, such indemnification obligation by the REIT Company shall not apply where an Indemnified Party officer or director of the Managing Member is seeking indemnity based on a claim or action brought against such Indemnified Party officer or director by an another officer or director of a Member. If for the Managing Member or any reason the foregoing indemnification is unavailable to any Indemnified Party (other than by reason Affiliate of the fraud, gross negligence, or willful misconduct of such Indemnified Party) or insufficient to hold it harmless, then the REIT shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the REIT on the one hand and such Indemnified Party on the other hand, but also the relative fault of the REIT and such Indemnified Party, as well as any relevant equitable considerationsManaging Member. In any action, suit or proceeding against the REIT Company or any Indemnified Party relating to or arising, or alleged by the party bringing the claim to relate to or arise, arise out of any such action or non-action, the Indemnified Parties shall have the right to jointly employ, at the expense of the REITCompany, counsel of the Indemnified Parties' choice ’ choice, which counsel shall be reasonably satisfactory to the Company, in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding, ; provided that if retention of joint counsel by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense of the REITCompany, separate counsel of such group of the Indemnified Parties' choice in such action, suit or proceedingParty’s choice, which counsel shall be reputable and qualified reasonably satisfactory to the Company, in matters of the type that are the subject of such action, suit or proceeding. The satisfaction of the obligations of the REIT Company under this Section 6.03(a6.03(A) shall be from and limited to the assets of the REIT Company and no Member shall have any personal liability on account thereof. Notwithstanding the foregoing or Section 6.03(B) below, unless a majority of the Percentage Interests of the Members shall have approved in writing a greater amount, the Company shall not, with respect to legal expenses and other costs resulting from legal actions and/or proceedings only, indemnify all Indemnified Parties for and/or advance to all Indemnified Parties, an aggregate amount in excess of Ten Million Dollars ($10,000,000). To the extent an Indemnified Party is seeking indemnification for a matter which relates to the Investment but not the Company, the Company will only be liable for its pro rata share of the indemnification obligation based on the relative percentage interest of the Company in ACEP LLC.

Liability for Acts and Omissions. (aA) None No General Partner, member of the members of the Board of DirectorsAdvisory Committee, any Member, Investment Committee or Plan Assets Committee or any of their respective Affiliates, nor their members, shareholders, partners, members, managers, officers, directors, employees, agents and representatives shall have any liability, responsibility or accountability in damages or otherwise to any Partner or the Partnership for, and the Partnership agrees to indemnify, pay, protect and hold harmless the General Partner, each member of the Advisory Committee, Investment Committee and Plan Assets Committee and their respective Affiliates, shareholders, partners, members, managers, officers, directors, employees, agents and representatives (collectively, the "“Indemnified Parties"”) shall have any liability, responsibility or accountability in damages or otherwise to any Member or the REIT for, and the REIT agrees to indemnify, pay, protect and hold harmless the Indemnified Parties from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Indemnified Parties or the REITPartnership) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the REIT Partnership in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the REITPartnership, on the part of the Indemnified Parties when acting on behalf of the REIT Partnership (or any of its Investments) or on the part of any brokers or agents when acting on behalf of the REITPartnership (or any of its Investments); provided, however, that each Member the General Partner shall be liable, responsible and accountable for and shall indemnify, pay, protect and hold harmless the REIT Partnership from and against (but only with respect to the Excluded LiabilitiesGeneral Partner and Indemnified Parties which are its Affiliates, shareholders, partners, members, managers, officers, directors, employees, agents and representatives), and the REIT Partnership shall not be liable to any Indemnified Party for, any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Excluded LiabilitiesPartnership) and all costs of investigation in connection therewith asserted against the Partnership which result from an Indemnified Party’s fraud, gross negligence, willful misconduct, bad faith or material breach of this Agreement or the payment to or receipt by an Indemnified Party of benefits in violation of this Agreement; provided, further, however, nothing in this provision shall create personal liability on the part of any Member's of the General Partner’s Affiliates or its or their respective members, shareholders, partners, members, managers, officers, directors, employees, agents or representatives. Notwithstanding the foregoing, such indemnification obligation by the REIT Partnership shall not apply where an Indemnified Party officer or director of the General Partner is seeking indemnity based on a claim or action brought against such Indemnified Party officer or director by an another officer or director of a Member. If for any reason the foregoing indemnification is unavailable to any Indemnified Party (other than by reason of the fraud, gross negligence, or willful misconduct of such Indemnified Party) or insufficient to hold it harmless, then the REIT shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the REIT on the one hand and such Indemnified Party on the other hand, but also the relative fault of the REIT and such Indemnified Party, as well as any relevant equitable considerationsGeneral Partner. In any action, suit or proceeding against the REIT Partnership or any Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the Indemnified Parties shall have the right to jointly employ, at the expense of the REITPartnership, counsel of the Indemnified Parties' choice ’ choice, which counsel shall be reasonably satisfactory to the Partnership, in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding, ; provided that if retention of joint counsel by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense of the REITPartnership, separate NYB 1502828.6 counsel of such group of the Indemnified Parties' choice in such action, suit or proceedingParty’s choice, which counsel shall be reputable and qualified reasonably satisfactory to the Partnership, in matters of the type that are the subject of such action, suit or proceeding. The satisfaction of the obligations of the REIT Partnership under this Section 6.03(a6.05(A) shall be from and limited to the assets of the REIT Partnership (which may include Remaining Capital Commitments) and no Member Limited Partner shall have any personal liability on account thereof.

Liability for Acts and Omissions. (a) None of the members General Partner, the Investment Manager, or any member of the Board of Directors, any Member, Advisory Committee nor any of their respective Affiliates, nor members, shareholders, partners, managers, officers, directors, employees, agents and representatives shall have any liability, responsibility or accountability in damages or otherwise to any other Partner, any Class A Member or the Fund for, and the Fund agrees, to the fullest extent permitted by law, to indemnify, pay, protect and hold harmless the General Partner, the Investment Manager, each member of the Advisory Committee and their respective Affiliates, members, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, the "“Indemnified Parties"”) shall have any liability, responsibility or accountability in damages or otherwise to any Member or the REIT for, and the REIT agrees to indemnify, pay, protect and hold harmless the Indemnified Parties from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including all costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Indemnified Parties or the REITFund) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the REIT Fund in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the REITFund, on the part of the Indemnified Parties when acting on behalf of the REIT Fund (or any of the Fund Investments) or on the part of any brokers or agents when acting on behalf of the REITFund (or any of the Fund Investments) (collectively, the “Indemnified Liabilities”); provided, however, that each Member (x) the Fund shall not be liable to any Indemnified Party for any portion of any Indemnified Liabilities that results from such Indemnified Party’s fraud, gross negligence (determined in the context of the Standard of Care), willful misconduct or breach of the terms of this Agreement or any other agreement between such Indemnified Party and the Fund or its Affiliates and (y) the General Partner shall be liable, responsible and accountable for and shall indemnify, pay, protect and hold harmless the REIT Fund from and against any Indemnified Liabilities which result from the Excluded LiabilitiesGeneral Partner’s, the Investment Manager’s or their respective Affiliates’ fraud, gross negligence (determined in the context of the Standard of Care), willful misconduct or breach of the terms of this Agreement or any other agreement between such Indemnified Party and the REIT shall not be liable to any Indemnified Party for, any portion of the Excluded LiabilitiesFund or its Affiliates; provided, further, however, nothing in this provision shall create personal liability on the part of any Member's of the General Partner’s Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives. Notwithstanding the foregoing, such indemnification obligation by the REIT representatives nor shall not apply where an Indemnified Party is seeking indemnity based on a claim this provision relieve any of them of liability arising under any other agreement or action brought against such Indemnified Party by an officer or director of a Member. If for any reason the foregoing indemnification is unavailable document to any Indemnified Party (other than by reason of the fraud, gross negligence, or willful misconduct of such Indemnified Party) or insufficient to hold it harmless, then the REIT shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the REIT on the one hand and such Indemnified Party on the other hand, but also the relative fault of the REIT and such Indemnified Party, as well as any relevant equitable considerationswhich they are parties. In any action, suit or proceeding against the REIT Fund or any Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the Indemnified Parties shall have the right to jointly employ, at the expense of the REITFund, counsel of the Indemnified Parties' ’ choice (reasonably satisfactory to the Fund) in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding, provided that if retention of joint counsel by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense of the REITFund, separate counsel of such group of Indemnified Parties' ’ choice in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding; provided, however, that if any indemnitor shall acknowledge in writing its liability to the relevant Indemnified Party for any action, suit or proceeding brought by a third party in connection with which such Indemnified Party is seeking indemnification, then such indemnitor shall be entitled to select counsel to defend such action, suit or proceeding, subject to the approval of such Indemnified Party, which approval shall not be unreasonably withheld. The satisfaction of the obligations of the REIT Fund under this Section 6.03(a6.05(a) shall be from and limited to the assets of the REIT Fund and no Member Limited Partner shall have any personal liability on account thereof.