Common use of Exclusions from Indemnities Clause in Contracts

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify a General Indemnitee under Section 13.1 and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a) for any Claim to the extent that such Claim is attributable to: (i) criminal acts or the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (ii) the breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.3, as the case may be, or the breach by such Indemnitee of its covenants as set forth in this Participation Agreement or in any other Operative Document to which such Indemnitee is a party; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring with respect to the Leased Property after any sale or taking possession pursuant to Section 16.2 of the Lease; or (v) acts occurring after the expiration or earlier termination of the Term, but, in the case of this clause (v), only to the extent not attributable to, relating to, or arising from, the Lessor’s ownership interests in the Leased Property); provided, however, that nothing in the foregoing clauses shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee for breach by Lessee or the Guarantors of its representations or warranties made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the Lease.

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify Lessor or a General Indemnitee under Section 13.1 13.1, and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a) 13.1(a)(i)(B), for any Claim to the extent that such Claim is attributable to: (i) criminal acts or the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (ii) the material breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.38.4, as the case may be, or the material breach by such Indemnitee of its covenants as set forth in this Participation Transaction Agreement or in any other Operative Document to which such Indemnitee is a party; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring with respect to the Leased Property after any sale or taking possession pursuant to Section 16.2 of the Lease(intentionally omitted); or (v) acts occurring after any Claim for the expiration or earlier termination recovery of the Term, but, in the case of this clause (v), only Project Costs to the extent not attributable to, relating to, or arising fromsuch Claim arises solely as a result of any Event of Default prior to the Base Term Commencement Date, the Lessor’s ownership interests recovery of such Project Costs to be governed by Article V of the Construction Agency Agreement; and (vi) any Claim related to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax Claim, it being agreed that any such indemnity for Taxes is in the Leased Property)Section 13.4; provided, however, that nothing in the foregoing clauses (i) through (iii) shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee or Parent Guarantor for breach by Lessee or the Guarantors Parent Guarantor of its representations or warranties made or deemed made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the LeaseLease or Article V of the Construction Agency Agreement.

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify a General Indemnitee under Section 13.1 and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a13.1(a)(i)(B) for any Claim to the extent that such Claim is attributable to: (i) criminal acts or the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (ii) the breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.38.4, as the case may be, or the breach by such Indemnitee of its covenants as set forth in this Participation Agreement or in any other Operative Document to which such Indemnitee is a party; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring with respect any Claim arising prior to the Leased Property after any sale Base Term Commencement Date for which the indemnities at Section 13.1(a)(i) applies and to the extent such claim arises solely from a Nonrelated Project Event (other than claims or taking possession pursuant amounts relating to Section 16.2 of environmental conditions existing on the LeaseDocument Closing Date or claims or amounts relating to a Full Recourse Event); or (v) acts occurring after any Claim for the expiration or earlier termination recovery of the Term, but, in the case of this clause (v), only Project Costs to the extent not attributable to, relating to, or arising fromsuch Claim arises solely as a result of any Event of Default prior to the Base Term Commencement Date, the Lessor’s ownership interests in recovery of such Project Costs to be governed by Article V of the Leased Property)Construction Agency Agreement; provided, however, that nothing in the foregoing clauses (i) through (iii) and, in the case of clause (y) below, clause (iv) shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee or Guarantor for breach by Lessee or the Guarantors Guarantor of its representations or warranties made or deemed made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the LeaseLease or Article V of the Construction Agency Agreement. Notwithstanding the foregoing, Construction Agent’s indemnification obligations under Article XIII to the extent but only to the extent relating to amounts due and owing regarding completion of construction of the Facility (other than third party liability claims or claims or amounts relating to environmental conditions existing on the Document Closing -49- Date or claims or amounts relating to a Full Recourse Event) are limited to the Recourse Amount. Additionally, this Section 13.1 shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax Claim.

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify a General Indemnitee under Section 13.1 and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a13.1(a)(i)(B) for any Claim to the extent that such Claim is attributable to: (i) criminal acts or the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (ii) the breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.38.4, as the case may be, or the breach by such Indemnitee of its covenants as set forth in this Participation Agreement or in any other Operative Document to which such Indemnitee is a party; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring with respect any Claim arising prior to the Leased Property after any sale Base Term Commencement Date for which the indemnities at Section 13.1(a)(i) applies and to the extent such claim arises solely from a Nonrelated Project Event (other than claims or taking possession pursuant amounts relating to Section 16.2 of environmental conditions existing on the LeaseDocument Closing Date or claims or amounts relating to a Full Recourse Event); or (v) acts occurring after any Claim for the expiration or earlier termination recovery of the Term, but, in the case of this clause (v), only Project Costs to the extent not attributable to, relating to, or arising fromsuch Claim arises solely as a result of any Event of Default prior to the Base Term Commencement Date, the Lessor’s ownership interests in recovery of such Project Costs to be governed by Article V of the Leased Property)Construction Agency Agreement; provided, however, that nothing in the foregoing clauses (i) through (iii) and, in the case of clause (y) below, clause (iv) shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee or Guarantor for breach by Lessee or the Guarantors Guarantor of its representations or warranties made or deemed made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the Lease.or

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify a General Indemnitee under Section 13.1 and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a) for any Claim to the extent that such Claim is attributable to: (i) acts, events or circumstances occurring after (but only to the extent not attributable to or constituting acts, events or circumstances occurring prior to), (A) the expiration or earlier termination of the Lease and (B) delivery of possession of the Subject Property to Lessor pursuant to Article XX of the Lease or, solely with respect to a Limited Recourse Event of Default, Article XVI of the Lease, or to a third party; (ii) criminal acts of such Indemnitee or the gross negligence or willful misconduct of such Indemnitee, as determined by provided that a court of competent jurisdiction in a final, non-appealable judgment; (ii) the breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.3, as the case may bedefault under, or the breach failure of Lessor to perform any obligation, covenant or agreement in, any Related Agreement, the CSC Sublease or any Fifth Floor Sublease or otherwise required by such Indemnitee of its covenants as set forth in this Participation Agreement Applicable Law, Governmental Action or in third parties with respect to the Subject Property, the CSC Sublease or any other Operative Document to which such Indemnitee is a partyFifth Floor Sublease shall not be deemed gross negligence or willful misconduct; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring any Claim for Taxes or Impositions other than those relating to a Claim of the type described at clause (iv) of Section 13.1(a) above or the obligation of Lessee to pay amounts under this Section 13.1 on an After Tax Basis (it being understood that Claims for Taxes or Impositions are dealt with respect in Sections 13.4, 13.5 and 15.3 and in such provisions as require payments by Lessee to be made on an After Tax Basis); (v) in the Leased Property after any sale event that the Lessee has exercised the Sale Option in accordance with Article XX of the Lease or taking possession pursuant to Lessor or the Collateral Agent has exercised remedies under Section 16.2 of the Lease; Lease solely as a result of a Limited Recourse Event of Default, any Claim for the costs of selling or (v) acts occurring after marketing the expiration or earlier termination Subject Property, the CSC Sublease and any Fifth Floor Sublease in excess of the Termamount of such costs Lessee would be obligated to pay under the Lease in connection with the exercise of the Sale Option and (vi) breach by such General Indemnitee of its representations and warranties in Section 8.1 or 8.4, but, in as the case of this clause (v), only to the extent not attributable to, relating tomay be, or arising fromthe breach by such General Indemnitee of its covenants as set forth in this Participation Agreement or the Lease, the Lessor’s ownership interests in the Leased Property)or any SNDA to which it is a party; provided, however, that nothing in the foregoing clauses (i) through (v) shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee for breach by Lessee or the Guarantors of its representations or warranties made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the Lease.

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify a General Indemnitee under Section 13.1 and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a13.1(a)(i)(B) for any Claim to the extent that such Claim is attributable to: (i) criminal acts or the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (ii) the breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.38.4, as the case may be, or the breach by such Indemnitee of its covenants as set forth in this Participation Agreement or in any other Operative Document to which such Indemnitee is a party; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring with respect to the Leased Property after any sale or taking possession pursuant to Section 16.2 of the Lease[Intentionally omitted]; or (v) acts occurring after any Claim for the expiration or earlier termination recovery of the Term, but, in the case of this clause (v), only Project Costs to the extent not attributable to, relating to, or arising fromsuch Claim arises solely as a result of any Event of Default prior to the Base Term Commencement Date, the Lessor’s ownership interests in recovery of such Project Costs to be governed by Article V of the Leased Property)Construction Agency Agreement; provided, however, that nothing in the foregoing clauses (i) through (iii) shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee or Guarantor for breach by Lessee or the Guarantors Guarantor of its representations or warranties made or deemed made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the LeaseLease or Article V of the Construction Agency Agreement. Additionally, this Section 13.1 shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax Claim. (f) Section 13.7 of the Participation Agreement is hereby amended by deleting the last paragraph in its entirety and substituting the following therefor: Notwithstanding the foregoing provisions of this Section 13.7, Lessee shall not be obligated to indemnify an Indemnitee under this Section 13.7 for any Claim (i) to the extent that such Claim is attributable to the gross negligence or willful misconduct of such Indemnitee or (ii) to the extent attributable to acts occurring after the expiration or earlier termination of the Term. (g) The Participation Agreement is hereby amended by deleting Section 15.2 in its entirety and substituting the following therefor: Except for Xxxxxx’s and Guarantor’s dealing with Banc of America Leasing & Capital, LLC, as the Arranger, each of the parties hereto represents to the others that it has not retained or employed the Arranger, or any broker, finder or financial advisor to act on its behalf in connection with this Participation Agreement, nor has it authorized the Arranger, or any broker, finder or financial adviser retained or employed by any other Person so to act, nor has it incurred any fees or commissions to which Lessor, the Administrative Agent or any Participant might be subjected by virtue of their entering into the Overall Transaction. Any party who is in breach of this representation shall indemnify and hold the other parties harmless from and against any liability arising out of such breach of this representation; provided however that prior to the Base Term Commencement Date (a) any indemnity by Lessee shall be for the benefit of Lessor only and in all cases shall include all claims for which Lessor has an obligation to indemnify any Person (including, but not limited to any Person to which Lessor sold participating interests in its rights and obligations under this Participation Agreement or the other Operative Documents pursuant to Section 12.2) or for which Lessor otherwise had liability under clause (b); and (b) Lessor shall in turn indemnify the other parties hereto for such liability but only to the extent Lessor was indemnified by Lessee for such liability pursuant to clause (a) above. (h) Section 15.5(d) of the Participation Agreement is hereby amended by deleting each reference to “Recourse Amount,”. (i) Appendix 1 to the Participation Agreement is hereby amended by deleting the definitions of “Construction Agent Related Event”, “Full Recourse Event”, “Nonrelated Project Event” and “Recourse Amount” in their entirety and without replacement. (j) The definition of “Impositions” in Appendix 1 to the Participation Agreement is hereby amended by deleting clause (xi) from the exclusions to Impositions (i.e. “Taxes or impositions which are imposed prior to the Base Term Commencement Date and arise solely as a result of a Nonrelated Project Event”) in its entirety and substituting the following therefor: “

Exclusions from Indemnities. Notwithstanding the foregoing provisions of this Article XIII, Lessee shall not be obligated to indemnify a General Indemnitee under Section 13.1 and Lessor shall not be required to indemnify a Participant Indemnitee under Section 13.1(a) for any Claim to the extent that such Claim is attributable to: (i) criminal acts or the gross negligence or willful misconduct of such Indemnitee, as determined by a court of competent jurisdiction in a final, non-appealable judgment; (ii) the breach by such Indemnitee of its representations and warranties in Section 8.1 or 8.3, as the case may be, or the breach by such Indemnitee of its covenants as set forth in this Participation Agreement or in any other Operative Document to which such Indemnitee is a party; (iii) any Claim resulting from the imposition of any Lessor Lien which such Indemnitee is responsible for discharging under the Operative Documents; (iv) acts occurring with respect to the Leased Property after any sale or taking possession pursuant to Section 16.2 of the Lease; or (v) acts occurring after the expiration or earlier termination of the Term, but, in the case of this clause (v), only to the extent not attributable to, relating to, or arising from, the Lessor’s ownership interests in the Leased Property); provided, however, that nothing in the foregoing clauses shall be deemed to exclude or limit any (x) Claim that Lessor or any Participant Indemnitee may have under any Operative Document or Applicable Laws for damages from the Lessee for breach by Lessee or the Guarantors of its representations or warranties made by it in any Operative Document or (y) any remedy under or right to damages pursuant to Article XVI of the Lease.