Common use of INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP Clause in Contracts

INDEMNIFICATION BY THE COMPANY AND THE OPERATING PARTNERSHIP. (a) To the fullest extent permitted by law, the Company and/or the Operating Partnership shall indemnify and hereby agrees to indemnify and hold harmless the Indemnitees from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnitees in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding arising from any actual or alleged act or omission to act performed or omitted by it in connection with any matter arising out of or in connection with this Agreement or the Company’s and/or the Operating Partnership’s business or affairs or any investment made or held by the Company and/or the Operating Partnership, and for any losses due to any actual or alleged act or omission to act of any broker, agent, counsel or accountant of the Company and/or the Operating Partnership; provided that the selection, engagement or retention of such broker, agent, counsel or accountant by the Indemnitee did not constitute Disabling Conduct, except for any such losses primarily attributable to such Indemnitee’s Disabling Conduct. An Indemnitee may, in good faith, consult with counsel and accountants and, to the fullest extent permitted by applicable law, will be fully protected and justified in any actual or alleged act or omission to act which is taken, in good faith, in accordance with the advice or opinion of such counsel or accountants so long as the selection, engagement or retention of such counsel or accountant did not constitute Disabling Conduct. (b) The Company and the Operating Partnership acknowledge and agree that, to the fullest extent permitted by applicable law, neither the Adviser nor any if its Affiliates will (x) be or be deemed to be in breach of this Agreement, or of any duty owed by the Adviser and/or the General Partner or such Affiliate to the Company and/or the Operating Partnership with respect to any actual or potential conflict of interests, or (y) have or be deemed to have any liability to the Company and/or the Operating Partnership in respect of any act or omission to act (i) specifically authorized by this Agreement, (ii) approved by the Board of Trustees, or (iii) approved by a majority in interest of Shareholders and/or Limited Partners. (c) The Company and/or the Operating Partnership shall, (i) advance to each Indemnitee, or (ii) promptly reimburse each Indemnitee for, all expenses (including fees and expenses of counsel) incurred in connection with investigating, preparing, pursuing or defending any proceeding related to, arising out of or in connection with this Agreement or the Company’s and/or the Operating Partnership’s business or affairs or any investment made or held by the Company and/or the Operating Partnership; provided that such Indemnitee shall promptly repay to the Company and/or the Operating Partnership the amount of any such advanced or reimbursed expenses paid to it if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such Indemnitee is not entitled to be indemnified under the terms of this Agreement. If for any reason (other than such Indemnitee’s Disabling Conduct), the foregoing indemnification is unavailable to any Indemnitee, or insufficient to hold it harmless, then the Company and/or the Operating Partnership shall contribute to the amount paid or payable by such Indemnitee as a result of such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect the relative benefits received by the Company and/or the Operating Partnership, on the one hand, and such Indemnitee on the other hand or, if such allocation is not permitted by applicable law, to reflect not only the relative benefits referred to above but also any other relevant equitable considerations. (d) The indemnification provided by this Section 18 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity. (e) An Indemnitee shall not be denied indemnification in whole or in part under this Section 18 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement and the Declaration of Trust. (f) The provisions of this Section 18 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.