Common use of Exceptions to Indemnifications Clause in Contracts

Exceptions to Indemnifications. Notwithstanding the provisions of Section 9.1.1 the Lessee shall not be obligated to indemnify any particular Indemnitee (nor any of its Affiliates) under Section 9.1.1 for any Claim to the extent resulting from or arising out of: (i) such Indemnitee’s fraud, gross negligence (it being understood that the Lessee shall be required to indemnify such Indemnitee (subject to the other provisions of this Section 9.1.2) even if the ordinary (but not gross) negligence of such Indemnitee, or any Affiliate thereof, caused or contributed to such Claim) or willful misconduct (other than the fraud, gross negligence or willful misconduct imputed as a matter of law to such Indemnitee solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby); (ii) the breach by such Indemnitee or any of its Affiliates of its respective representations and warranties in this Participation Agreement or any other Operative Document, or the breach by such Indemnitee or any of its Affiliates of its covenants as set forth in this Participation Agreement or in any other Operative Document; (iii) any Claim resulting from the imposition of any Lessor Lien attributable to such Indemnitee or its Affiliates; (iv) any Claim for environmental liability, which liability is addressed in Section 9.5; (v) any Claim to the extent attributable to acts or events which occur after the expiration of the Lease Term or earlier termination of the Lease and the return by the Lessee of the Facility in accordance with the terms thereof (except (A) to the extent fairly attributable to acts, events, liabilities or damages occurring or accruing prior thereto; (B) Claims arising following the termination or expiration of the Lease Term so long as the Administrative Agent or any Participant continues to exercise remedies against the Lessee in respect of the Operative Documents and (C) Claims arising after the expiration of the Lease Term so long as the Lessor is remarketing the Facility (or any interest therein) in accordance with Section 7.1 of the Lease); (vi) any Claim in respect of Taxes (such claims to be subject to Section 9.2), other than a payment to make payments under Section 9.1 or 9.1.2 on an after-tax basis as provided in Section 9.4; (vii) with respect to any Indemnitee, any expense expressly provided under any of the Operative Documents to be paid or borne by such Indemnitee or its Affiliate; (viii) any Claim to the extent resulting from a voluntary transfer by any Indemnitee or its Affiliate (including a transfer upon a Lessor GAAP Event pursuant to Section 8.1.1(b)) of all or part of its interest in the Lease, the other Operative Documents or the Facility, (other than (A) while a Lease Event of Default has occurred and is continuing, (B) such transfer is required (pursuant to an act or omission of the Lessee or otherwise) under the Lease, or (C) such transfer is made at the election of Lessee pursuant to Article VIII); or (ix) any Claim to the extent resulting from a violation of Applicable Law by such Indemnitee or its Affiliates (other than (A) a violation of Applicable Law imputed as a matter of law to such Indemnitee or such Affiliate solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby and (B) a violation of Applicable Law resulting from the failure of the Lessee or the Guarantor to perform its obligations under the Operative Documents). It is expressly understood and agreed that the indemnity provided for in Section 9.1.1 shall survive the resignation or removal of any Indemnitee, the expiration or termination of, and shall be separate and independent from any remedy under, the Lease or any other Operative Document.

Exceptions to Indemnifications. Notwithstanding the provisions of Section 9.1.1 the or 9.1.3, Lessee shall not be obligated to indemnify any particular an Indemnitee (nor any of its Affiliates) under Section 9.1.1 or 9.1.3, and Lessor shall not be required to indemnify a Construction Period Indemnitee under Section 9.1.3, for any Claim to the extent resulting from or arising out of: (i) such Indemnitee’s the fraud, gross negligence (it being understood that the Lessee shall be required to indemnify such an Indemnitee (subject to the other provisions of this Section 9.1.29.1.2 and Section 9.1.3) even if the ordinary (but not gross) negligence of such Indemnitee, or any Affiliate thereof, caused or contributed to such Claim) or willful misconduct of such Indemnitee or any of its Affiliates (other than the fraud, gross negligence or willful misconduct imputed as a matter of law to such Indemnitee solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby); (ii) the breach by such Indemnitee or any of its Affiliates of its respective representations and warranties in this Participation Agreement or any other Operative Document, or the breach by such Indemnitee or any of its Affiliates of its covenants as set forth in this Participation Agreement or in any other Operative Document; (iii) any Claim resulting from the imposition of any Lessor Lien attributable to such Indemnitee or its Affiliates; (iv) any Claim for environmental liability, which liability is addressed in Section 9.5; (v) any Claim to the extent attributable to acts or events which occur after the expiration of the Lease Term or earlier termination of the Lease and the return by the Lessee of the Facility Properties in accordance with the terms thereof (except (A) to the extent fairly attributable to acts, events, liabilities or damages occurring or accruing prior thereto; (B) Claims arising following the termination or expiration of the Lease Term so long as the Administrative Collateral Agent or any Participant continues to exercise remedies against the Lessee in respect of the Operative Documents and (C) Claims arising after the expiration of the Lease Term so long as the Lessor is remarketing the Facility Properties (or any interest therein) in accordance with Section 7.1 of the Lease); (vi) any Claim for the recovery of Improvement Costs whether or not such Claim arises solely as a result of a Construction Agency Event of Default (which for the avoidance of doubt shall include Construction Breakage Costs and other amounts payable by Construction Agent as Default Completion Costs) or costs incurred in remediating a Construction Agency Event of Default prior to the Lease Commencement Date, other than if such Claim results from the gross negligence or willful or intentional act or omission of any Construction Agency Person as to 50 PARTICIPATION AGREEMENT which Lessee shall fully indemnify each Indemnitee under Section 9.1.1 (without the right to obtain an Advance therefor); (vii) any Claim in respect of Taxes (such claims to be subject to Section 9.2), other than a payment to make payments under Section 9.1 or 9.1.2 on an after-tax basis as provided in Section 9.4; (viiviii) with respect to any Indemnitee, any expense expressly provided under any of the Operative Documents to be paid or borne by such Indemnitee or its Affiliate; (viiiix) any Claim to the extent resulting from a voluntary transfer by any Indemnitee or its Affiliate (including a transfer upon a Lessor GAAP Event pursuant to Section 8.1.1(b)) of all or part of its interest in the Lease, the other Operative Documents or the FacilityProperties, (other than (A) while a Lease Event of Default or a Construction Agency Event of Default has occurred and is continuing, (B) continuing or such transfer is required (pursuant to an act or omission of the Lessee or otherwise) under the Lease, Lease or (C) such transfer is made at the election of Lessee pursuant to Article VIII)any Person consented to by Lessee; or (ixx) any Claim to the extent resulting from a violation of Applicable Law by such Indemnitee or its Affiliates (other than (A) a violation of Applicable Law imputed as a matter of law to such Indemnitee or such Affiliate solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby and (B) a violation of Applicable Law resulting from the failure of the Lessee or the Guarantor to perform its obligations under the Operative Documents). It is expressly understood and agreed that the indemnity provided for in Section 9.1.1 or 9.1.3 shall survive the resignation or removal of any Indemnitee, the expiration or termination of, and shall be separate and independent from any remedy under, the Lease Lease, the Construction Agency Agreement or any other Operative Document.

Exceptions to Indemnifications. Notwithstanding the provisions of Section 9.1.1 the or 9.1.3, Lessee shall not be obligated to indemnify any particular an Indemnitee (nor any of its Affiliates) under Section 9.1.1 or 9.1.3, and Lessor shall not be required to indemnify a Construction Period Indemnitee under Section 9.1.3, for any Claim to the extent resulting from or arising out of: (i) such Indemnitee’s the fraud, gross negligence (it being understood that the Lessee shall be required to indemnify such an Indemnitee (subject to the other provisions of this Section 9.1.29.1.2 and Section 9.1.3) even if the ordinary (but not gross) negligence of such Indemnitee, or any Affiliate thereof, caused or contributed to such Claim) or willful misconduct of such Indemnitee or any of its Affiliates (other than the fraud, gross negligence or willful misconduct imputed as a matter of law to such Indemnitee solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby); (ii) the breach by such Indemnitee or any of its Affiliates of its respective representations and warranties in this Participation Agreement or any other Operative Document, or the breach by such Indemnitee or any of its Affiliates of its covenants as set forth in this Participation Agreement or in any other Operative Document; (iii) any Claim resulting from the imposition of any Lessor Lien attributable to such Indemnitee or its Affiliates; (iv) any Claim for environmental liability, which liability is addressed in Section 9.5; (v) any Claim to the extent attributable to acts or events which occur after the expiration of the Lease Term or earlier termination of the Lease and the return by the Lessee of the Facility in accordance with the terms thereof (except (A) to the extent fairly attributable to acts, events, liabilities or damages occurring or accruing prior thereto; (B) Claims arising following the termination or expiration of the Lease Term so long as the Administrative Collateral Agent or any Participant continues to exercise remedies against the Lessee or Guarantor in respect of the Operative Documents and (C) Claims arising after the expiration of the Lease Term so long as the Lessor is remarketing the Facility Properties (or any interest therein) in accordance with Section 7.1 of the Lease); (vi) any Claim for the recovery of Improvement Costs whether or not such Claim arises solely as a result of a Construction Agency Event of Default (which for the avoidance of doubt shall include Construction Breakage Costs and other amounts payable by Construction Agent as Default Completion Costs) or costs incurred in remediating a Construction Agency Event of Default prior to the Lease Commencement Date, other than if such Claim results from the gross negligence or willful or intentional act or omission of any Construction Agency Person as to which Lessee shall fully indemnify each Indemnitee under Section 9.1.1 (without the right to obtain an Advance therefor); (vii) any Claim arising from a dispute between two or more Participants or Agents and not involving, or resulting from the acts or failure to act of, Lessee or Guarantor; (viii) any Claim in respect of Taxes (such claims to be subject to Section 9.2), other than a payment to make payments under Section 9.1 or 9.1.2 on an after-tax basis as provided in Section 9.4; (viiix) with respect to any Indemnitee, any expense expressly provided under any of the Operative Documents to be paid or borne by such Indemnitee or its Affiliate; (viiix) any Claim to the extent resulting from a voluntary transfer by any Indemnitee or its Affiliate (including a transfer upon a Lessor GAAP Event pursuant to Section 8.1.1(b)) of all or part of its interest in the Lease, the other Operative Documents or the FacilityProperties, (other than (A) while a Lease Event of Default has occurred and is continuing, (B) continuing or such transfer is -64- 72 required (pursuant to an act or omission of the Lessee or otherwise) under the Lease, or ; (C) such transfer is made at the election of Lessee pursuant to Article VIII); or (ixxi) any Claim to the extent resulting from a violation of Applicable Law by such Indemnitee or its Affiliates (other than (A) a violation of Applicable Law imputed as a matter of law to such Indemnitee or such Affiliate solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby and (B) a violation of Applicable Law resulting from the failure of the Lessee or the Guarantor to perform its obligations under the Operative Documents); (xii) any Claim for losses by an Indemnitee to the extent based on its inability to invest in another transaction or use for any other purpose the funds invested in connection with the transactions contemplated hereby (provided, however, that this clause (xii) shall not limit any of Lessee's obligations under Sections 9.7 and 9.9) or (xiii) any Claim against which Lessee has been precluded from defending as a result of such Indemnitee's or its Affiliate's failure to promptly notify Lessee of such Claim in accordance with Section 9.6. Without limiting the express rights of any Indemnitee under Section 9.1, Sections 9.1.1 and 9.1.3 shall be construed as an indemnity only and shall not be construed as a guaranty or indemnity of residual value of any Property, including, without limitation, with respect to payment of any deficiency after payment to Lessor of the Residual Value Guaranty Amount or the Construction Period Maximum Guaranty Amount, as applicable. It is expressly understood and agreed that the indemnity provided for in Section 9.1.1 or 9.1.3 shall survive the resignation or removal of any Indemnitee, the expiration or termination of, and shall be separate and independent from any remedy under, the Lease Lease, the Construction Agency Agreement or any other Operative Document.

Exceptions to Indemnifications. Notwithstanding the provisions of Section 9.1.1 or 9.1.3, neither the Lessee nor the Construction Agent shall not be obligated to indemnify any particular Indemnitee (nor any of its Affiliates) under Section 9.1.1 or 9.1.3, and the Lessor shall not be required to indemnify a Construction Period Indemnitee under Section 9.1.3, for any Claim to the extent resulting from or arising out of: (i) such Indemnitee’s 's fraud, gross negligence (it being understood that the Lessee and the Construction Agent shall be required to indemnify such Indemnitee (subject to the other provisions of this Section 9.1.29.1.2 and Section 9.1.3) even if the ordinary (but not gross) negligence of such Indemnitee, or any Affiliate thereof, caused or contributed to such Claim) or willful misconduct (other than the fraud, gross negligence or willful misconduct imputed as a matter of law to such Indemnitee solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby); (ii) the breach by such Indemnitee or any of its Affiliates of its respective representations and warranties in this Participation Agreement or any other Operative Document, or the breach by such Indemnitee or any of its Affiliates of its covenants as set forth in this Participation Agreement or in any other Operative Document; (iii) any Claim resulting from the imposition of any Lessor Lien attributable to such Indemnitee or its Affiliates; (iv) any Claim for environmental liability, which liability is addressed in Section 9.5; (v) any Claim to the extent attributable to acts or events which occur after the expiration of the Lease Term or earlier termination of the Lease and the return by the Lessee of the Facility in accordance with the terms thereof (except (A) to the extent fairly attributable to acts, events, liabilities or damages occurring or accruing prior thereto; (B) Claims arising following the termination or expiration of the Lease Term so long as the Administrative Collateral Agent or any Participant continues to exercise remedies against the Lessee in respect of the Operative Documents and (C) Claims arising after the expiration of the Lease Term so long as the Lessor is remarketing the Facility (or any interest therein) in accordance with Section 7.1 of the Lease; (vi) any Claim for the recovery of Improvement Costs whether or not such Claim arises solely as a result of a Construction Agency Event of Default (which for the avoidance of doubt shall include Construction Breakage Costs and other amounts payable by the Construction Agent as Default Completion Costs) or costs incurred in remediating a Construction Agency Event of Default prior to the Lease Commencement Date, other than if such Claim results from the gross negligence or willful or intentional act or omission of any Construction Agency Person as to which the Lessee shall fully indemnify each Indemnitee under Section 9.1.1 (without the right to obtain an Advance therefor); (vivii) any Claim in respect of Taxes (such claims to be subject to Section 9.2), other than a payment to make payments under Section 9.1 or 9.1.2 on an after-tax basis as provided in Section 9.4; (viiviii) with respect to any Indemnitee, any expense expressly provided under any of the Operative Documents to be paid or borne by such Indemnitee or its Affiliate; (viiiix) any Claim to the extent resulting from a voluntary transfer by any Indemnitee or its Affiliate (including a transfer upon a Lessor GAAP Event pursuant to Section 8.1.1(b)) of all or part of its interest in the Lease, the other Operative Documents or the Facility, (other than (A) while a Lease Event of Default or a Construction Agency Event of Default has occurred and is continuing, (B) continuing or such transfer is required (pursuant to an act or omission of the Lessee or otherwise) under the Lease, or (C) such transfer is made at the election of Lessee pursuant to Article VIII); or (ixx) any Claim to the extent resulting from a violation of Applicable Law by such Indemnitee or its Affiliates (other than (A) a violation of Applicable Law imputed as a matter of law to such Indemnitee or such Affiliate solely by reason of entering into the Operative Documents or the consummation of the transactions contemplated thereby and (B) a violation of Applicable Law resulting from the failure of the Lessee or the Guarantor Construction Agent to perform its obligations under the Operative Documents). It is expressly understood and agreed that the indemnity provided for in Section 9.1.1 or 9.1.3 shall survive the resignation or removal of any Indemnitee, the expiration or termination of, and shall be separate and independent from any remedy under, the Lease Lease, the Construction Agency Agreement or any other Operative Document.