Basic Lease Term. During the Basic Lease Term, the Lessee shall assume liability for, and indemnify, protect, defend, save and keep harmless each Indemnitee, on an After Tax Basis, from and against, any and all Claims arising during the Basic Lease Term or thereafter that may be imposed on, incurred by or asserted against such Indemnitee (whether because of action or omission by such Indemnitee or otherwise), whether or not such Indemnitee shall also be indemnified as to any such Claim by any other Person, in any way relating to or arising in whole or in part out of (or alleged to in any way relate to or arise in whole or in part out of): (i) any agreement for the purchase or ground lease of the Land (including the Ground Lease), or the assignment to the Lessor of any such purchase agreement or ground lease, any other document, instrument or agreement relating thereto or any of the transactions contemplated by any of the foregoing; (ii) any of the Operative Documents or any of the transactions contemplated thereby, and any amendment, modification or waiver in respect thereof; (iii) the Property or any part thereof or interest therein; (iv) the purchase, design, construction, preparation, installation, inspection, delivery, nondelivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession, maintenance, repair, alteration, modification, addition or substitution, storage, transfer of title, redelivery, use, financing, refinancing, disposition, operation, condition, sale (including, without limitation, any sale pursuant to Section 16.2(c) or 16.2(e) of the Lease or any sale pursuant to Article XV, XVIII or XX of the Lease or Article V or Article VI of the Construction Agency Agreement), return or other disposition of all or any part or any interest in the Property or the imposition of any Lien (or incurring of any liability to refund or pay over any amount as a result of any Lien) thereon, including, without limitation: (A) Claims or penalties arising from any violation of law or in tort (on the basis of strict liability or otherwise), (B) latent or other defects, whether or not discoverable, (C) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to any of the Property, (D) the making of any Modifications in violation of any standards imposed by any insurance policies required to be maintained by the Lessee pursuant to the Lease which are in effect at any time with respect to the Property or any part thereof, (E) any Claim for patent, trademark or copyright infringement, and (F) Claims arising from any public improvements with respect to the Property resulting in any change or special assessments being levied against the Property or any plans to widen, modify or realign any street or highway adjacent to the Property, or any Claim for utility "tap-in" fees; (v) the breach or alleged breach by the Lessee or the Construction Agent of any covenant, representation or warranty made by it in any Operative Document or any certificate required to be delivered by any Operative Document; (vi) the retaining or employment of any broker, finder or financial advisor by the Lessee to act on its behalf in connection with this Participation Agreement or any other Operative Document or pursuant to the acquisition of the Property or any part thereof pursuant to this Participation Agreement; (vii) the existence of any Lien on or with respect to the Property, the Improvements, any Basic Rent or Supplemental Rent, title thereto, or any interest therein including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee or the Construction Agent, or any of their respective contractors or agents or by reason of the financing of any personalty or equipment purchased or leased by the Lessee or the Construction Agent or Modifications constructed by the Lessee or the Construction Agent, except Lessor Liens and Liens in favor of the Lessor and/or the Participants; (viii) the transactions contemplated by the Lease or by any other Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; or (ix) any indemnification claim made against any Liquidity Bank under the Liquidity Documents.
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Basic Lease Term. During the Basic Lease Term, the The Lessee shall agrees to assume liability for, and to indemnify, protect, defend, save and keep harmless each Indemnitee, on an After Tax Basis, from and against, against any and all Claims arising (but excluding any such Claim that relates to a particular Property and arises during the Basic Interim Lease Term or thereafter for such Property) that may be imposed on, incurred by or asserted against such Indemnitee (whether because of action or omission by such Indemnitee or otherwise), whether or not such Indemnitee shall also be indemnified as to any such Claim by any other PersonPerson and whether or not such Claim arises or accrues prior to the Acquisition Date or after the Expiration Date, in any way relating to or arising in whole or in part out of (or alleged to in any way relate to or arise in whole or in part out of)::
(i) any agreement for the purchase or ground lease of the Land (including the Ground Lease), or the assignment to the Lessor of any such purchase agreement or ground lease, any other document, instrument or agreement relating thereto or any of the transactions contemplated by any of the foregoing;
(ii) any of the Operative Documents or any of the transactions contemplated thereby, and any amendment, modification or waiver in respect thereof;
(iiiii) the Property Properties or any part thereof or interest therein;
(iviii) the purchase, design, construction, preparation, installation, inspection, delivery, nondelivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession, maintenance, repair, alteration, modification, addition or substitution, storage, transfer of title, redelivery, use, financing, refinancingfinancing or refinancing by the Lessee, disposition, operation, condition, sale (including, including without limitation, any sale pursuant to Section 16.2(c16.2(d) or 16.2(e16.2(f) of the Master Lease or any sale pursuant to Article XV, XVIII or XX of the Lease or Article V or Article VI of the Construction Agency AgreementMaster Lease), return or other disposition of all or any part or any interest in the Property or the imposition of any Lien except Lessor Liens and Liens in favor of the Lenders, Lessor Trust or the Certificate Holders (or incurring of any liability to refund or pay over any amount as a result of any such Lien) thereon, including, without limitation: :
(A1) Claims or penalties arising from any violation of law or in tort (on the basis of strict liability or otherwise), (B2) latent or other defects, whether or not discoverable, (C3) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to any of the Property, (D4) the making of any Modifications in violation of any standards imposed by any insurance policies required to be maintained by the Lessee or Lessee pursuant to the Lease which are in effect at any time with respect to the Property or any part thereof, (E5) any Claim for patent, trademark or copyright infringementinfringement with respect to the Property, and (F6) Claims arising from any public improvements with respect to the Property resulting in any change or special assessments being levied against the Property or any plans to widen, modify or realign any street or highway adjacent to the Property, or any Claim for utility "tap-in" fees;
(viv) the breach or alleged breach by the Lessee or the Construction Agent any Guarantor of any covenant, representation or warranty made by it in any Operative Document or any certificate required to be delivered by it by any Operative Document;
(viv) the retaining or employment of any broker, finder or financial advisor by the any Lessee to act on its behalf in connection with this Participation Agreement or any other Operative Document or pursuant to the acquisition of the Property or any part thereof pursuant to this Participation AgreementDocument;
(viivi) the existence of any Lien on or with respect to the Property, the Improvements, any Basic Rent or Supplemental Rent, title thereto, or any interest therein including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee or the Construction AgentLessee, or any of their respective its contractors or agents or by reason of the financing of any personalty or equipment purchased or leased by the Lessee or the Construction Agent or Modifications constructed by the Lessee or the Construction AgentLessee, except Lessor Liens and Liens in favor of the Lessor and/or Lenders or the ParticipantsCertificate Holders;
(viiivii) subject to the accuracy of any Participant's representation set forth in Section 8.1(a), as to such Participant, the transactions contemplated by the Lease or by any other Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; orand
(ixviii) any indemnification claim made against and all taxes in connection with the Lease. Provided, however, that the Lessee shall not be required to indemnify any Liquidity Bank Indemnitee under this Section 13.1 for any of the following: (1) any Claim to the extent resulting from the willful misconduct or gross negligence of any Indemnitee (it being understood that the Lessee shall be required to indemnify an Indemnitee even if the ordinary (but not gross) negligence of such Indemnitee caused or contributed to such Claim) or the breach of any representation, warranty or covenant of such Indemnitee set forth in any Operative Document, (2) any Claim resulting from Lessor Liens, (3) any Claim arising from a breach or alleged breach by any Indemnitee of any Operative Document or any agreement entered into in connection with the assignment or participation of any Loan or Certificate Holder Amount, and (4) any Claim arising in respect to the Property to the extent attributable to acts or events occurring in the period after the Lessee ceases to lease the Property from the Lessor Trust under the Liquidity Documentsrelated Lease, provided that the facts supporting such Claim occur after such period. It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of and shall be separate and independent from any remedy under the Lease or any other Operative Document. Without limiting the express rights of any Indemnitee under this Section 13.1, this Section 13.1 shall be construed as an indemnity only and not a guaranty of residual value of the Property or as a guaranty of the Notes.
Appears in 1 contract
Basic Lease Term. During the Basic Lease Term, the The Lessee shall agrees to assume liability for, and to indemnify, protect, defend, save and keep harmless each Indemnitee, on an After Tax Basis, from and against, against any and all Claims arising (but excluding any such Claim that relates to a particular Property and arises during the Basic Interim Lease Term or thereafter for such Property) that may be imposed on, incurred by or asserted against such Indemnitee (whether because of action or omission by such Indemnitee or otherwise), whether or not such Indemnitee shall also be indemnified as to any such Claim by any other PersonPerson and whether or not such Claim arises or accrues prior to the Acquisition Date or after the Expiration Date, in any way relating to or arising in whole or in part out of (or alleged to in any way relate to or arise in whole or in part out of)::
(i) any agreement for the purchase or ground lease of the Land (including the Ground Lease), or the assignment to the Lessor of any such purchase agreement or ground lease, any other document, instrument or agreement relating thereto or any of the transactions contemplated by any of the foregoing;
(ii) any of the Operative Documents or any of the transactions contemplated thereby, and any amendment, modification or waiver in respect thereof;
(iiiii) the Property Properties or any part thereof or interest therein;
(iviii) the purchase, design, construction, preparation, installation, inspection, delivery, nondelivery, acceptance, rejection, ownership, management, possession, operation, rental, lease, sublease, repossession, maintenance, repair, alteration, modification, addition or substitution, storage, transfer of title, redelivery, use, financing, refinancingfinancing or refinancing by the Lessee, disposition, operation, condition, sale (including, including without limitation, any sale pursuant to Section 16.2(c16.2(d) or 16.2(e16.2(f) of the Master Lease or any sale pursuant to Article XV, XVIII or XX of the Lease or Article V or Article VI of the Construction Agency AgreementMaster Lease), return or other disposition of all or any part or any interest in the Property or the imposition of any Lien except Lessor Liens and Liens in favor of the Lenders, Lessor Trust or the Certificate Holders (or incurring of any liability to refund or pay over any amount as a result of any such Lien) thereon, including, without limitation: :
(A1) Claims or penalties arising from any violation of law or in tort (on the basis of strict liability or otherwise), (B2) latent or other defects, whether or not discoverable, (C3) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to any of the Property, (D4) the making of any Modifications in violation of any standards imposed by any insurance policies required to be maintained by the Lessee or Lessee pursuant to the Lease which are in effect at any time with respect to the Property or any part thereof, (E5) any Claim for patent, trademark or copyright infringementinfringement with respect to the Property, and (F6) Claims arising from any public improvements with respect to the Property resulting in any change or special assessments being levied against the Property or any plans to widen, modify or realign any street or highway adjacent to the Property, or any Claim for utility "tap-in" fees;
(viv) the breach or alleged breach by the Lessee or the Construction Agent Guarantor of any covenant, representation or warranty made by it in any Operative Document or any certificate required to be delivered by it by any Operative Document;
(viv) the retaining or employment of any broker, finder or financial advisor by the any Lessee to act on its behalf in connection with this Participation Agreement or any other Operative Document or pursuant to the acquisition of the Property or any part thereof pursuant to this Participation AgreementDocument;
(viivi) the existence of any Lien on or with respect to the Property, the Improvements, any Basic Rent or Supplemental Rent, title thereto, or any interest therein including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee or the Construction AgentLessee, or any of their respective its contractors or agents or by reason of the financing of any personalty or equipment purchased or leased by the Lessee or the Construction Agent or Modifications constructed by the Lessee or the Construction AgentLessee, except Lessor Liens and Liens in favor of the Lessor and/or Lenders or the ParticipantsCertificate Holders;
(viiivii) subject to the accuracy of any Participant's representation set forth in Section 8.1(a), as to such Participant, the transactions contemplated by the Lease or by any other Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; orand
(ixviii) any indemnification claim made against and all taxes in connection with the Lease. Provided, however, that the Lessee shall not be required to indemnify any Liquidity Bank Indemnitee under this Section 13.1 for any of the following: (1) any Claim to the extent resulting from the willful misconduct or gross negligence of any Indemnitee (it being understood that the Lessee shall be required to indemnify an Indemnitee even if the ordinary (but not gross) negligence of such Indemnitee caused or contributed to such Claim) or the breach of any representation, warranty or covenant of such Indemnitee set forth in any Operative Document, (2) any Claim resulting from Lessor Liens, (3) any Claim arising from a breach or alleged breach by any Indemnitee of any Operative Document or any agreement entered into in connection with the assignment or participation of any Loan or Certificate Holder Amount, and (4) any Claim arising in respect to the Property to the extent attributable to acts or events occurring in the period after the Lessee ceases to lease the Property from the Lessor Trust under the Liquidity Documentsrelated Lease, provided that the facts supporting such Claim occur after such period. It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of and shall be separate and independent from any remedy under the Lease or any other Operative Document. Without limiting the express rights of any Indemnitee under this Section 13.1, this Section 13.1 shall be construed as an indemnity only and not a guaranty of residual value of the Property or as a guaranty of the Notes.
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