Common use of Developer’s Indemnification Clause in Contracts

Developer’s Indemnification. (a) Developer agrees (at Developer's expense) to indemnify, defend and hold harmless Mall II LLC, Mall II Buyer and their respective directors, officers, stockholders, partners, members and employees (the foregoing collectively the "MALL INDEMNITEES") from and against any loss, liability, damage, cost, or expense (including Fees and Costs) which any of them may suffer, or which may be asserted against any of them, in whole or in part by reason of, or in connection with: (i) any bodily injury, sickness, disease or death of or to any person or persons, or any damage to or destruction of property, arising out of or resulting from acts or omissions of Developer, Mall II LLC (to the extent taken or occurring prior to Closing) or Developer's contractors or subcontractors in connection with the Mall Improvements or other construction work relating to the Development, whether on the Phase II Land or elsewhere; (ii) any failure by Developer, Mall II LLC (to the extent occurring prior to Closing) or Developer's contractors or subcontractors to comply with applicable Legal Requirements or insurance requirements; (iii) the use or misuse by Developer, Mall II LLC (to the extent occurring prior to Closing) or Developer's contractors or subcontractors of Hazardous Materials on the Phase II Land; (iv) infringement of patent rights, licensing or royalty agreements, or trade secrets by Developer, Mall II LLC (to the extent occurring prior to Closing) or Developer's contractors or subcontractors in connection with the Mall Improvements or other construction work relating to the Development, whether on the Phase II Land or elsewhere; (v) any liens filed against the Phase II Mall by any Person claiming by, through, or under Developer or Mall II LLC (to 18 the extent relating to claims accruing before Closing); and/or (vi) any claims under Developer's Warranty. (b) Developer shall defend any Legal Proceedings commenced against any of the Mall Indemnitees concerning any matter covered by the foregoing indemnification. Developer shall give Mall II Buyer copies of documents served in any such Legal Proceeding and shall advise Mall II Buyer regularly as to the status of the same. If Developer fails to defend diligently against any such Legal Proceeding, or if Mall II Buyer reasonably believes that Developer's interest in such Legal Proceeding is adverse to Mall II Buyer's interest therein, Mall II Buyer shall have the right (but not the obligation), upon ten (10) Business Day's prior written notice, to defend the same at Developer's expense. Developer shall not settle any such Legal Proceeding without the written consent of Mall II Buyer (unless such settlement shall release each Mall Indemnitee against whom liability has been asserted from all liability with respect to such Legal Proceeding without contribution from such Indemnitee). No Mall Indemnitee may settle any such Legal Proceeding without the written consent of Developer, which consent shall not be unreasonably withheld or delayed. (c) Mall II Buyer shall notify Developer promptly of every Legal Proceeding or claim which may be covered by the indemnification in (a) above. Developer's obligations under this Section 3.5 shall not be limited or defined by the amount of insurance carried by Developer or by limitations on amount or type of damages under worker's compensation acts or other laws relating to employee benefits. (d) This Section shall not require indemnification of any Mall II Buyer Indemnitee TO THE EXTENT of the negligence or willful misconduct of Mall II Buyer, or of Mall II LLC after the transfer of the Membership Interests to Mall II Buyer, any of their respective agents or affiliated Persons, or another Mall Indemnitee. (e) The provisions of this Section 3.5 shall survive the Closing.

Developer’s Indemnification. (a) Developer agrees (at Developer's expense) to indemnify, defend and hold harmless Mall II LLC, Mall II Buyer and their respective directors, officers, stockholders, partners, members and employees (the foregoing collectively the "MALL INDEMNITEESMall Indemnitees") from and against any loss, liability, damage, cost, or expense (including Fees and Costs) which any of them may suffer, or which may be asserted against any of them, in whole or in part by reason of, or in connection with: (i) any bodily injury, sickness, disease or death of or to any person or persons, or any damage to or destruction of property, arising out of or resulting from acts or omissions of Developer, Mall II LLC (to the extent taken or occurring prior to Closing) or Developer's contractors or subcontractors in connection with the Mall Improvements or other construction work relating to the Development, whether on the Phase II Land or elsewhere; (ii) any failure by Developer, Mall II LLC (to the extent occurring prior to Closing) or Developer's contractors or subcontractors to comply with applicable Legal Requirements or insurance requirements; (iii) the use or misuse by Developer, Mall II LLC (to the extent occurring prior to Closing) or Developer's contractors or subcontractors of Hazardous Materials on the Phase II Land; (iv) infringement of patent rights, licensing or royalty agreements, or trade secrets by Developer, Mall II LLC (to the extent occurring prior to Closing) or Developer's contractors or subcontractors in connection with the Mall Improvements or other construction work relating to the Development, whether on the Phase II Land or elsewhere; (v) any liens filed against the Phase II Mall by any Person claiming by, through, or under Developer or Mall II LLC (to 18 the extent relating to claims accruing before Closing); and/or (vi) any claims under Developer's Warranty. (b) Developer shall defend any Legal Proceedings commenced against any of the Mall Indemnitees concerning any matter covered by the foregoing indemnification. Developer shall give Mall II Buyer copies of documents served in any such Legal Proceeding and shall advise Mall II Buyer regularly as to the status of the same. If Developer fails to defend diligently against any such Legal Proceeding, or if Mall II Buyer reasonably believes that Developer's interest in such Legal Proceeding is adverse to Mall II Buyer's interest therein, Mall II Buyer shall have the right (but not the obligation), upon ten (10) Business Day's prior written notice, to defend the same at Developer's expense. Developer shall not settle any such Legal Proceeding without the written consent of Mall II Buyer (unless such settlement shall release each Mall Indemnitee against whom liability has been asserted from all liability with respect to such Legal Proceeding without contribution from such Indemnitee). No Mall Indemnitee may settle any such Legal Proceeding without the written consent of Developer, which consent shall not be unreasonably withheld or delayed. (c) Mall II Buyer shall notify Developer promptly of every Legal Proceeding or claim which may be covered by the indemnification in (a) above. Developer's obligations under this Section 3.5 shall not be limited or defined by the amount of insurance carried by Developer or by limitations on amount or type of damages under worker's compensation acts or other laws relating to employee benefits. (d) This Section shall not require indemnification of any Mall II Buyer Indemnitee TO THE EXTENT to the extent of the negligence or willful misconduct of Mall II Buyer, or of Mall II LLC after the transfer of the Membership Interests to Mall II Buyer, any of their respective agents or affiliated Persons, or another Mall Indemnitee. (e) The provisions of this Section 3.5 shall survive the Closing.