Common use of Liability for Acts and Omissions Clause in Contracts

Liability for Acts and Omissions. (a) None of the General Partner, the Investment Manager, or any member of the Advisory Committee nor any of their respective Affiliates, 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”) 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 Fund) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the 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 Fund, on the part of the Indemnified Parties when acting on behalf of the Fund (or any of the Fund Investments) or on the part of any brokers or agents when acting on behalf of the Fund (or any of the Fund Investments) (collectively, the “Indemnified Liabilities”); provided, however, that (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 Fund from and against any Indemnified Liabilities which result from the General 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 Fund or its Affiliates; provided, further, however, nothing in this provision shall create personal liability on the part of any of the General Partner’s Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives nor shall this provision relieve any of them of liability arising under any other agreement or document to which they are parties. In any action, suit or proceeding against the 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 Fund, 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 Fund, 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 Fund under this Section 6.05(a) shall be from and limited to the assets of the Fund and no Limited Partner shall have any personal liability on account thereof.

Liability for Acts and Omissions. (aA) None of the General Partner, the Investment Manager, or any member of the Advisory Committee No Managing Member nor any of their respective its Affiliates, members, shareholders, partners, managers, officers, directors, employees, agents and or representatives shall have any liability, responsibility or accountability in damages or otherwise to any other Partner, any Class A Member or the Fund Company for, and the Fund agrees, to the fullest extent permitted by law, Company agrees to indemnify, pay, protect and hold harmless the General PartnerManaging Member, the Investment Manager, each member of the Advisory Committee and their respective its Affiliates, members, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, 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 FundCompany) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the Fund 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 Fund, Company on the part of the Indemnified Parties when acting on behalf of the Fund Company (or any of the Fund InvestmentsInvestment) or on the part of any brokers or agents when acting on behalf of the Fund Company (or any of the Fund Investments) (collectivelyInvestment); provided that, the “Indemnified Liabilities”); provided, however, that (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 Managing Member shall be liable, responsible and accountable for and shall indemnify, pay, protect and hold harmless the Fund Company from and against (but only with respect to the Managing Member and Indemnified Parties which are its Affiliates, shareholders, partners, managers, officers, directors, employees, agents and representatives), and the Company shall not be liable to any Indemnified Liabilities 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 Company) and all costs of investigation in connection therewith asserted against the Company which result from the General Partner’s, the Investment Manageran Indemnified Party’s or their respective Affiliates’ fraud, gross negligence (determined in the context of the Standard of Care)negligence, willful misconduct or misconduct, bad faith, breach of the terms fiduciary duty or material breach of this Agreement or any other agreement between such the payment to or receipt by an Indemnified Party and the Fund or its Affiliatesof benefits in violation of this Agreement; provided, further, however, that nothing in this provision shall create personal liability on the part of any of the General PartnerManaging Member’s Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives nor (except for the Managing Member). Notwithstanding the foregoing, such indemnification obligation by the Company shall this provision relieve not apply where an officer or director of the Managing Member is seeking indemnity based on a claim or action brought against such officer or director by another officer or director of the Managing Member or any Affiliate of them of liability arising under any other agreement or document to which they are partiesthe Managing Member. In any action, suit or proceeding against the Fund 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 FundCompany, counsel of the Indemnified Parties’ choice (choice, which counsel shall be reasonably satisfactory to the Fund) 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 FundCompany, separate counsel of such group of the Indemnified Parties’ choice Party’s 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, 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 Fund Company under this Section 6.05(a6.03(A) shall be from and limited to the assets of the Fund Company and no Limited Partner 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 of the No General Partner, the Investment Manager, or any member of the Advisory Committee, Investment Committee nor or Plan Assets Committee or any of their respective Affiliates, members, shareholders, partners, members, 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 Partner or the Fund Partnership for, and the Fund agrees, to the fullest extent permitted by law, Partnership agrees to indemnify, pay, protect and hold harmless the General Partner, the Investment Manager, each member of the Advisory Committee, Investment Committee and Plan Assets Committee and their respective Affiliates, members, shareholders, partners, members, managers, officers, directors, employees, agents and representatives (collectively, 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 FundPartnership) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the Fund 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 FundPartnership, on the part of the Indemnified Parties when acting on behalf of the Fund Partnership (or any of the Fund its Investments) or on the part of any brokers or agents when acting on behalf of the Fund Partnership (or any of the Fund its Investments) (collectively, the “Indemnified Liabilities”); provided, however, that (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 Fund Partnership from and against (but only with respect to the General Partner and Indemnified Parties which are its Affiliates, shareholders, partners, members, managers, officers, directors, employees, agents and representatives), and the Partnership shall not be liable to any Indemnified Liabilities 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 Partnership) and all costs of investigation in connection therewith asserted against the Partnership which result from the General Partner’s, the Investment Manageran Indemnified Party’s or their respective Affiliates’ fraud, gross negligence (determined in the context of the Standard of Care)negligence, willful misconduct misconduct, bad faith or material breach of the terms of this Agreement or any other agreement between such the payment to or receipt by an Indemnified Party and the Fund or its Affiliatesof benefits in violation of this Agreement; provided, further, however, nothing in this provision shall create personal liability on the part of any of the General Partner’s Affiliates or its or their respective members, shareholders, partners, members, managers, officers, directors, employees, agents or representatives nor representatives. Notwithstanding the foregoing, such indemnification obligation by the Partnership shall this provision relieve any not apply where an officer or director of them the General Partner is seeking indemnity based on a claim or action brought against such officer or director by another officer or director of liability arising under any other agreement or document to which they are partiesthe General Partner. In any action, suit or proceeding against the Fund 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 FundPartnership, counsel of the Indemnified Parties’ choice (choice, which counsel shall be reasonably satisfactory to the Fund) 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 FundPartnership, separate NYB 1502828.6 counsel of such group of the Indemnified Parties’ choice Party’s 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, 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 Fund Partnership under this Section 6.05(a6.05(A) shall be from and limited to the assets of the Fund Partnership (which may include Remaining Capital Commitments) and no Limited Partner shall have any personal liability on account thereof.

Liability for Acts and Omissions. (a) None of the General Partner, the Investment Manager, or any member members of the Advisory Committee nor Board of Directors, any Member, any of their respective Affiliates, 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 nor 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 FundREIT) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Indemnified Parties or the Fund 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 FundREIT, on the part of the Indemnified Parties when acting on behalf of the Fund (or any of the Fund Investments) REIT or on the part of any brokers or agents when acting on behalf of the Fund (or any of the Fund Investments) (collectively, the “Indemnified Liabilities”)REIT; provided, however, that (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 each Member shall be liable, responsible and accountable for and shall indemnify, pay, protect and hold harmless the Fund REIT from and against the Excluded Liabilities, and the REIT shall not be liable to any Indemnified Liabilities which result from the General Partner’sParty for, the Investment Manager’s or their respective Affiliates’ fraud, gross negligence (determined in the context any portion 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 AffiliatesExcluded Liabilities; provided, further, however, nothing in this provision shall create personal liability on the part of any of the General Partner’s Member's Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives nor representatives. Notwithstanding the foregoing, such indemnification obligation by the REIT shall this provision relieve 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 them 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 arising under 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 other agreement or document to which they are partiesrelevant equitable considerations. In any action, suit or proceeding against the Fund 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 FundREIT, 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 FundREIT, 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 Fund REIT under this Section 6.05(a6.03(a) shall be from and limited to the assets of the Fund REIT and no Limited Partner Member shall have any personal liability on account thereof.