AND EXPENSES, INCLUDING REASONABLE
EXPERT FEES AND EXPENSES) INCURRED BY SUCH VORNADO INDEMNIFIED PERSON (INCLUDING
LIABILITIES OF THE OPERATING PARTNERSHIP ARISING UNDER THE INDEMNIFICATION
PROVISIONS OF THE VORNADO PARTNERSHIP AGREEMENT (COLLECTIVELY, "TRANSACTION LOSS
AND EXPENSES")) BY REASON OF OR ARISING OUT OF ANY CLAIM BY ANY CONTRIBUTING
PARTNER (OR ANY PERSON CLAIMING A DIRECT OR INDIRECT INTEREST IN SUCH
CONTRIBUTING PARTNER) ARISING AT OR PRIOR TO THE CLOSING OUT OF THE TRANSACTION
(EACH, A "PARTNER CLAIM"), SOLELY BY HAVING THE RIGHT TO RECEIVE DELIVERY OF THE
ESCROW UNITS PURSUANT TO THE ESCROW AGREEMENT (THE INDEMNITY GRANTED UNDER THIS
SECTION 8.2(A)(IV) BEING REFERRED TO HEREIN AS THE "PARTNER TRANSACTION
INDEMNITY").
FOR PURPOSES OF THIS AGREEMENT, REPRESENTATION AND WARRANTY LOSS
AND EXPENSES, DISCLOSURE LOSS AND EXPENSES, LANDLORD ESTOPPEL LOSS AND EXPENSES
AND TRANSACTION LOSS AND EXPENSES ARE HEREINAFTER REFERRED TO AS "VORNADO LOSS
AND EXPENSES."
(V)
FOR PURPOSES OF CLARIFICATION, THE AMOUNT OF
ANY VORNADO LOSS AND EXPENSES SHALL BE CALCULATED SOLELY WITH RESPECT TO THE
DAMAGES, CLAIMS, LOSSES, EXPENSES, COSTS, OBLIGATIONS AND LIABILITIES AFFECTING
VORNADO INDEMNIFIED PERSONS, AND IF AN INDEMNIFIED DAMAGE, CLAIM, LOSS, EXPENSE,
COST, OBLIGATION OR LIABILITIES IS INCURRED BY A SUBJECT ENTITY, THEN THE AMOUNT
OF SUCH VORNADO LOSS AND EXPENSE SHALL BE LIMITED TO THE PERCENTAGE SHARE OF
OWNERSHIP HELD, DIRECTLY OR INDIRECTLY, BY SUCH VORNADO INDEMNIFIED PERSON IN
SUCH SUBJECT ENTITY.
44
(B)
THIRD PARTY CLAIMS PROCEDURES.
THE
OPERATING PARTNERSHIP SHALL PROMPTLY NOTIFY THE REPRESENTATIVES IN WRITING OF
THE COMMENCEMENT OF ANY ACTION OR OTHER ASSERTION OF A CLAIM BY A THIRD PARTY
FOR WHICH THE OPERATING PARTNERSHIP BELIEVES INDEMNIFICATION IS PROVIDED FOR
PURSUANT TO SECTION 8.2(A) (AS DISTINGUISHED FROM ANY CLAIMS UNDER
SECTION 8.2(A) WHICH DO NOT INVOLVE ANY THIRD PARTY, AS TO WHICH THE
INDEMNIFICATION PROCEDURES SET FORTH IN THIS SECTION 8.2(B) SHALL BE
INAPPLICABLE BUT THE CLAIMS PROCEDURES SET FORTH IN SECTION 8.2(D) SHALL APPLY);
PROVIDED, HOWEVER, THAT THE FAILURE OF THE OPERATING PARTNERSHIP SO TO NOTIFY
THE REPRESENTATIVES OF THE COMMENCEMENT OF ANY SUCH ACTION OR SUCH OTHER CLAIM
SHALL NOT RESULT IN THE FORFEITURE BY THE OPERATING PARTNERSHIP OF ITS RIGHT TO
RECOVER FOR SUCH CLAIM FROM THE ESCROW UNITS IN ACCORDANCE WITH THIS SECTION 8.2
UNLESS SUCH FAILURE IS MATERIALLY INJURIOUS TO THE ABILITY OF THE
REPRESENTATIVES TO DEFEND ANY SUCH ACTION.
IF ANY SUCH ACTION IS BROUGHT OR
CLAIM IS ASSERTED AGAINST THE OPERATING PARTNERSHIP AND THE REPRESENTATIVES ARE
SO NOTIFIED, THEN (SUBJECT TO THE RIGHT TO DISPUTE SUCH CLAIM AS DESCRIBED IN
SECTION 8.2(D)), THE REPRESENTATIVES, THROUGH COUNSEL SELECTED BY THE
REPRESENTATIVES AND REASONABLY ACCEPTABLE TO THE OPERATING PARTNERSHIP (AND
WHICH COUNSEL SHALL BE PAID ITS REASONABLE FEES AND EXPENSES BY THE OPERATING
PARTNERSHIP (WHICH AMOUNTS SHALL BE INCLUDED IN THE EXPENSES SUBJECT TO THE
REPRESENTATION AND WARRANTY INDEMNITY, THE DISCLOSURE INDEMNITY, THE LANDLORD
ESTOPPEL INDEMNITY OR THE TRANSACTION INDEMNITY, SUBJECT TO THE LIMITATIONS SET
FORTH HEREIN) SHALL CONTROL THE DEFENSE OF ANY SUCH ACTION OR CLAIM; PROVIDED
THAT THE REPRESENTATIVES ASSUME THE DEFENSE OF SUCH MATTER