Common use of Indemnification and Waiver Clause in Contracts

Indemnification and Waiver. a. Xxxxxxxx agrees to indemnify and defend the Department and its agents, employees, officers, successors and assigns (collectively, the “Indemnified Parties”) against, and holds the Department and other Indemnified Parties harmless from, any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including attorneys' fees) of every name, kind and description which are threatened or asserted against, or suffered or incurred by, the Department or any other Indemnified Party as a direct or indirect consequence of: (1) the making of the Loan to the Borrower; (2) Borrower's failure to perform any obligations as and when required by this Agreement or any of the other Loan Documents; (3) any failure at any time of any of Borrower's representations or warranties to be materially true and correct; (4) any act or omission by Borrower, any contractor, subcontractor, material supplier, engineer, architect or other person or entity with respect to the Property or the Development, or the design, construction, management, maintenance, repair or operation thereof; (5) any failure of the Property or the Development to comply with all applicable laws, statutes, rules, regulations or orders, including without limitation the Program Requirements, now or hereafter applicable thereto, or (6) the presence of any environmental conditions at the Development or on the Property. Xxxxxxxx shall pay immediately upon the Department's demand any amounts owing under this indemnity together with interest from the date the indebtedness arises until paid at the rate equal to the lesser of: (i) ten percent (10%) per annum, compounded annually, or (ii) the maximum rate permitted by law. Xxxxxxxx’s duty to indemnify, defend and hold harmless includes the duties to defend as set forth in section 2778 of the Civil Code. Borrower shall indemnify, defend and hold harmless the Department and the other Indemnified Parties as set forth herein regardless of the existence or degree of fault or negligence whether active or passive, primary or secondary on the part of the Department or such other Indemnified Parties, the Borrower or their respective agents, officers, employees, contractors or subcontractors; provided, however, that Xxxxxxxx's duty to indemnify, defend and hold harmless hereunder shall not extend to liability to the extent arising from the gross negligence or willful misconduct of the Department. Xxxxxxxx's duty to indemnify, defend and hold harmless the Department and other Indemnified Parties shall survive the term of this Agreement, the release, repayment and/or cancellation of the Note, and the reconveyance or partial reconveyance of the Deed of Trust. In the event the United States Department of Housing and Urban Development ("HUD") acquires title to the Development, this indemnification provision will not apply to HUD. b. The Borrower waives and releases any and all rights to any types of express or implied indemnity against the Department or its agents, officers or employees. c. The Borrower expressly waives the protections of section 1542 of the Civil Code in relation to and in connection with subparagraphs 34a. and b. above, and the waivers, releases, agreements and other undertakings by Borrower thereunder. Said section 1542 provides as follows:

Indemnification and Waiver. a. The following subparagraph does not apply to any successor in interest to the Property that succeeds to the Borrower as a result of foreclosure upon a loan to Borrower: Xxxxxxxx agrees to indemnify and defend the Department and its agents, employees, officers, successors employees and assigns (collectively, the “Indemnified Parties”) officers against, and holds the Department and other Indemnified Parties its agents, employees and officers harmless from, any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including attorneys' fees) of every name, kind and description description, which are threatened or asserted against, or suffered or incurred by, the Department or any other Indemnified Party may incur as a direct or indirect consequence of: : (1) the making of the Loan to the Borrower; (2) Borrower's failure to perform any obligations as and when required by this Agreement or any of the other Loan Documents; (3) any failure at any time of any of Borrower's representations or warranties to be materially true and correct; (4) any act or omission by Borrower, any contractor, subcontractor, material supplier, engineer, architect or other person or entity with respect to the Property or the Development, or the design, construction, management, maintenance, repair maintenance or operation thereofof the Development; or (5) any failure of the Property or the Development to comply with all applicable laws, statutes, rules, regulations or orders, including without limitation the Program Requirements, now or hereafter applicable thereto, or (6) the presence of any recognized environmental conditions at the Development or on the Property. Borrower (but not any successor to Xxxxxxxx in the ownership of the Property) shall pay immediately upon the Department's demand any amounts owing under this indemnity together with interest from the date the indebtedness arises until paid at the rate equal to the lesser of: (i) of ten percent (10%) per annum, compounded annually, or (ii) the maximum rate permitted by law. Xxxxxxxx’s duty to indemnify, defend indemnify and hold save harmless includes the duties to defend as set forth in section 2778 of the Civil Code. Borrower (but not any successor to Borrower in the ownership of the Property) shall indemnify, defend indemnify and hold harmless the Department and the other Indemnified Parties its agents, officers and employees as set forth herein regardless of the existence or degree of fault or negligence whether active or passive, primary or secondary on the part of the Department or such other Indemnified PartiesDepartment, the Borrower or their respective agents, officers, employees, contractors or subcontractorssubcontractor; provided, however, that Xxxxxxxx's duty to indemnify, defend indemnify and hold harmless hereunder shall not extend to liability to the extent arising from the gross negligence or willful misconduct of the Department. Xxxxxxxx's duty to indemnify, defend and hold harmless indemnify the Department and other Indemnified Parties shall survive the term of this Agreement, the release, repayment and/or release and cancellation of the Note, and the reconveyance or partial reconveyance of the Deed of Trust. In the event the United States Department of Housing and Urban Development ("HUD") acquires title to the Development, this indemnification provision will not apply to HUD. b. The Borrower waives and releases any and all rights to any types of express or implied indemnity against the Department or its agents, officers or employees. c. The Borrower expressly waives the protections of section 1542 of the Civil Code in relation to and in connection with subparagraphs 34a. a. and b. above, and the waivers, releases, agreements and other undertakings by Borrower thereunder. Said section 1542 provides as follows:

Indemnification and Waiver. a. Xxxxxxxx agrees to 12.1 City shall defend, indemnify and defend hold each and all of the Department Tacoma Indemnitees harmless from and its agents, employees, officers, successors and assigns (collectively, the “Indemnified Parties”) against, and holds the Department and other Indemnified Parties harmless from, against any and all claims, liens, demands, actions, losses, damages, liabilitiescosts, claims, actions, judgments, court costs expenses and legal or other expenses liabilities (including attorneys' fees) of every name, kind and description which are threatened arising directly or asserted against, indirectly from or suffered or incurred by, the Department or any other Indemnified Party as a direct or indirect consequence ofin connection with: (1a) the making of the Loan to the Borrower; (2) Borrower's failure to perform any obligations as transportation, storage, sale, delivery and when required by this Agreement or any of the other Loan Documents; (3) any failure at any time use of any of Borrower's representations or warranties water delivered to be materially true and correct; City in accordance with this Agreement; (4b) any act or omission by Borrowerthe negligent, any contractor, subcontractor, material supplier, engineer, architect or other person or entity with respect to the Property or the Developmentreckless, or the designotherwise tortious acts or omissions of City, constructionor of anyone directly or indirectly retained or employed by City, management, maintenance, repair or operation thereof; in performance of this Agreement; (5c) any failure of the Property City to perform or the Development to comply with all applicable lawsany one or more obligations made or arising under this Agreement; (d) any material breach, statutesfailure, rulesinconsistency, regulations inaccuracy or orders, including without limitation the Program Requirements, now default of any one or hereafter applicable thereto, or more representations made to Tacoma in Section 18; (6e) the presence use or resale of any environmental conditions at the Development or on Wholesale Water Supply for fire suppression purposes, or (f) City Hazardous Substances. To the Property. Xxxxxxxx shall pay immediately upon the Department's demand any amounts owing under this indemnity together with interest from the date the indebtedness arises until paid at the rate equal to the lesser of: (i) ten percent (10%) per annum, compounded annually, or (ii) the maximum rate fullest extent permitted by law. Xxxxxxxx’s duty Applicable Law, City's obligation to indemnifyso release, defend defend, indemnify and hold harmless includes the duties to defend as set forth in section 2778 of the Civil Code. Borrower shall indemnify, defend and hold harmless the Department and the other Indemnified Parties as set forth herein apply regardless of the existence negligence or degree strict liability of fault any one or negligence whether active or passive, primary or secondary on the part more of the Department Tacoma Indemnitees. As between the Parties and solely for the purpose of the indemnities contained in this Section 12.1, City expressly waives any immunity, defense or such protection that may be granted to it under the Washington State Industrial Insurance Act, Title 51 RCW, or any other Indemnified Partiesindustrial insurance, workers' compensation or similar laws of the Borrower or their respective agents, officers, employees, contractors or subcontractors; provided, however, that Xxxxxxxx's duty State of Washington to indemnify, defend and hold harmless hereunder the fullest extent permitted by Applicable Law. This Section 12.1 shall not extend be interpreted or construed as a waiver of City's right to liability to assert such immunity, defense or protection directly against any of its own employees or any such employee's estate or other representatives. This Section 12.1 has been mutually negotiated by the extent arising from the gross negligence or willful misconduct of the Department. Xxxxxxxx's duty to indemnify, defend Parties and hold harmless the Department and other Indemnified Parties shall survive the term expiration or termination of this Agreement, the release, repayment and/or cancellation of the Note, and the reconveyance or partial reconveyance of the Deed of Trust. In the event the United States Department of Housing and Urban Development ("HUD") acquires title . 12.2 Neither Party shall be monetarily liable to the Development, this indemnification provision will not apply other Party or its respective customers for failure to HUDsupply and deliver the Wholesale Water Supply at any time or for any reason. b. The Borrower waives and releases any and all rights to any types of express or implied indemnity against the Department or its agents12.3 EXCEPT WITH RESPECT TO THIRD-PARTY CLAIMS AS TO WHICH CITY HAS ASSUMED OBLIGATIONS ARISING UNDER SECTION 12.1 AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, officers or employees. c. The Borrower expressly waives the protections of section 1542 of the Civil Code in relation to and in connection with subparagraphs 34aNEITHER PARTY SHALL BE LIABLE AS A RESULT OF ANY ACTION OR INACTION UNDER THIS AGREEMENT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR OTHER FAULT, STRICT LIABILITY WITHOUT REGARD TO FAULT, BREACH OF CONTRACT OR WARRANTY, FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR INDIRECT LOSSES OR SIMILAR DAMAGES OF ANY NATURE WHATSOEVER, WHETHER ARISING UNDER THE LAW OF CONTRACTS, TORTS (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF EVERY KIND AND STRICT LIABILITY, WITHOUT FAULT) OR PROPERTY, OR AT COMMON LAW OR IN EQUITY, OR OTHERWISE, IRRESPECTIVE OF WHETHER SUCH LOSSES OR SIMILAR DAMAGES ARE REASONABLY FORESEEABLE AND IRRESPECTIVE OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR EXISTENCE OF SUCH DAMAGES. and b. above, and the waivers, releases, agreements and other undertakings by Borrower thereunder13. Said section 1542 provides as follows:REGULATORY COMPLIANCE

Indemnification and Waiver. a. Xxxxxxxx agrees To the extent not prohibited by law and except for claims relating to indemnify and defend Hazardous Materials existing upon, under or about the Department and Premises prior to the execution of this Lease or the migration thereon from offsite sources not caused by Tenant after the execution of this Lease, Landlord, its respective officers, agents, employeesservants, and employees shall not be liable for, and are hereby released from, any responsibility for any damage either to person or property or resulting from the loss of use thereof, which damage is sustained by Tenant due to the Premises or any part thereof or any appurtenances thereof needing repair (including any improvements, materials, or equipment relating to telephone or telecommunication systems), or due to the occurrence of any accident or event in or about the Project, or due to any act or neglect of any tenant or occupant of the Project, including the Premises, or of any other person. The provisions of this Section 10.1 shall apply particularly, but not exclusively, to damage caused by gas, electricity, steam, sewage, sewer gas or odors, fire, water, or by the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures, and windows, and shall apply without distinction as to the person whose act or neglect was responsible for the damage and whether the damage was due to any of the causes specifically enumerated above or to some other cause of an entirely different nature. Tenant further agrees that all personal property upon the Premises or Project shall be at the risk of Tenant only, and that Landlord shall not be liable for any loss or damage thereto or theft thereof. Tenant shall indemnify, defend, protect, and hold harmless Landlord its respective officers, successors agents, servants, and assigns employees from any and all loss, cost, damage, expense, liability (including without limitation court costs and reasonable attorneys' fees), penalties, and charges (collectively, the “Indemnified Parties”"Claims") againstincurred in connection with or arising from any cause in, and holds the Department and other Indemnified Parties harmless from, any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including attorneys' fees) of every name, kind and description which are threatened or asserted againston, or suffered or incurred byabout the Premises, including, without limiting the Department or any other Indemnified Party as a direct or indirect consequence of: (1) the making generality of the Loan to the Borrower; (2) Borrower's failure to perform any obligations as and when required by this Agreement or any of the other Loan Documents; (3) any failure at any time of any of Borrower's representations or warranties to be materially true and correct; (4) any act or omission by Borrower, any contractor, subcontractor, material supplier, engineer, architect or other person or entity with respect to the Property or the Development, or the design, construction, management, maintenance, repair or operation thereof; (5) any failure of the Property or the Development to comply with all applicable laws, statutes, rules, regulations or orders, including without limitation the Program Requirements, now or hereafter applicable thereto, or (6) the presence of any environmental conditions at the Development or on the Property. Xxxxxxxx shall pay immediately upon the Department's demand any amounts owing under this indemnity together with interest from the date the indebtedness arises until paid at the rate equal to the lesser offoregoing: (i) ten percent (10%) per annumany failure by Tenant in the observance or performance of any of the terms, compounded annuallycovenants, or conditions of this Lease on Tenant's part to be observed or performed; (ii) the maximum rate permitted use or occupancy of the Premises by lawTenant or any person claiming by, through, or under Tenant; (iii) the condition of the Premises or any occurrence or happening on the Premises from any cause whatsoever, excluding claims arising out of Hazardous Materials existing upon, under or about the Premises prior to the execution of this Lease or the migration thereon from offsite sources not caused by Tenant after the execution of this Lease; or (iv) any acts, omissions, or negligence of Tenant or of any person claiming by, through, or under Tenant, or of the contractors, agents, servants, employees, invitees or licensees of Tenant or any such person, in, on, or about the Premises or anywhere else within the Project to the extent relating to their activities on the Premises, including, without limitation, any acts, omissions, or negligence in the making or performance of any Alterations (whether prior to or during the Lease Term), provided Tenant shall not indemnify Landlord or its respective officers, agents, servants, and employees, from any Claim arising out of or related to their gross negligence or will misconduct. Xxxxxxxx’s duty to Landlord shall defend, indemnify, defend and hold harmless includes Tenant from and against any and claims arising out of Hazardous Materials existing upon the duties Premises prior to defend as set forth in section 2778 the execution of this Lease or the migration thereon from offsite sources caused by Landlord after the execution of this Lease. The provisions of this Section 10.1 shall survive the expiration or sooner termination of this Lease. The respective obligations of the Civil Code. Borrower parties under this Section 10.1 are subject to the following conditions: (i) the party seeking indemnity ("Indemnitee") shall indemnify, defend and hold harmless the Department and promptly notify the other Indemnified Parties as set forth herein regardless party ("Indemnitor") of any Claims; (ii) the Indemnitee shall not take any actions, including an admission of liability, that would bar the Indemnitor from enforcing any applicable coverage of insurance held by the Indemnitor or prejudice any defense of the existence Indemnitor in any legal proceedings pertaining to such Claim or degree of fault otherwise prevent the Air Cargo Lease A-Mark 2014 - 19 - Indemnitor from defending itself or negligence whether active the indemnitee with respect to such Claim; (iii) the Indemnitee shall not enter into any settlement agreement or passive, primary or secondary on arrangement without the part prior consent of the Department Indemnitor, which consent may be granted or such other Indemnified Parties, withheld in the Borrower or their respective agents, officers, employees, contractors or subcontractorsIndemnitor's sole discretion; provided, however, that Xxxxxxxx's duty to indemnify, defend and hold harmless hereunder (iv) the indemnification obligations of the Indemnitor shall not extend to liability apply to the extent arising from that the gross negligence or willful misconduct of the Department. Xxxxxxxx's duty Indemnitee actually receives insurance proceeds with respect to indemnify, defend and hold harmless the Department and other Indemnified Parties shall survive the term of this Agreement, the release, repayment and/or cancellation of the Notesuch Claim, and the reconveyance or partial reconveyance of the Deed of Trust. In the event the United States Department of Housing and Urban Development ("HUD"v) acquires title for any liability that Landlord may have under this Lease to Tenant, Landlord shall not be liable to Tenant for any damages whatsoever to the Development, this indemnification provision will not apply extent said damages are insured under the insurance policies required to HUDbe maintained by Tenant under Section 10.3. b. The Borrower waives and releases any and all rights to any types of express or implied indemnity against the Department or its agents, officers or employees. c. The Borrower expressly waives the protections of section 1542 of the Civil Code in relation to and in connection with subparagraphs 34a. and b. above, and the waivers, releases, agreements and other undertakings by Borrower thereunder. Said section 1542 provides as follows:

Indemnification and Waiver. a. Xxxxxxxx (a) Without limiting any other rights which any such Person may have hereunder or under applicable law, the Seller agrees to indemnify and defend the Department and its agents, employees, officers, successors and assigns (collectivelyPurchaser, the “Indemnified Parties”) against, and holds the Department and other Indemnified Parties harmless from, any and all losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses (including attorneys' fees) of every name, kind and description which are threatened or asserted against, or suffered or incurred by, the Department or any other Indemnified Party as a direct or indirect consequence of: (1) the making of the Loan to the Borrower; (2) Borrower's failure to perform any obligations as and when required by this Agreement or any of the other Loan Documents; (3) any failure at any time of any of Borrower's representations or warranties to be materially true and correct; (4) any act or omission by Borrower, any contractor, subcontractor, material supplier, engineer, architect or other person or entity with respect to the Property or the Development, or the design, construction, management, maintenance, repair or operation thereof; (5) any failure of the Property or the Development to comply with all applicable laws, statutes, rules, regulations or orders, including without limitation the Program Requirements, now or hereafter applicable thereto, or (6) the presence of any environmental conditions at the Development or on the Property. Xxxxxxxx shall pay immediately upon the Department's demand any amounts owing under this indemnity together with interest from the date the indebtedness arises until paid at the rate equal to the lesser of: (i) ten percent (10%) per annum, compounded annually, or (ii) the maximum rate permitted by law. XxxxxxxxPurchaser’s duty to indemnify, defend and hold harmless includes the duties to defend as set forth in section 2778 of the Civil Code. Borrower shall indemnify, defend and hold harmless the Department Affiliates and the other Indemnified Parties as set forth herein regardless of the existence or degree of fault or negligence whether active or passivepartners, primary or secondary on the part of the Department or such other Indemnified Parties, the Borrower or their respective agentsdirectors, officers, employees, contractors agents, trustees, administrators, managers, advisors, consultants, service providers and representatives of the Purchaser and of the Purchaser’s Affiliates (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, liabilities -6- and related reasonable and documented out-of-pocket costs and expenses, including reasonable and documented attorneys’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) incurred by such Indemnified Party by reason of (i) any acts or subcontractors; providedomissions of the Seller in its capacity as Seller hereunder in breach of any of its agreements or covenants under any Loan Document or the transactions contemplated thereby or (ii) any breach of any representation or warranty of the Seller in its capacity as Seller hereunder contained in any Loan Document or in any certification or written material delivered by the Seller pursuant to any Loan Document, excluding, however, that Xxxxxxxx's duty to indemnify, defend and hold harmless hereunder shall not extend to liability Indemnified Amounts (a) to the extent arising determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Department. Xxxxxxxx's duty to indemnifysuch Indemnified Party, defend and hold harmless the Department and other Indemnified Parties shall survive the term of this Agreement, the release, repayment and/or cancellation of the Note, and the reconveyance or partial reconveyance of the Deed of Trust. In the event the United States Department of Housing and Urban Development ("HUD"b) acquires title related to the Developmentnonpayment by any obligor of an amount due and payable with respect to a Transferred Asset or any change in the market value of any Transferred Asset, this indemnification provision will not apply to HUD. b. The Borrower waives and releases any and all rights (c) related to any types loss in value of express any Cash Equivalent or implied indemnity against the Department (d) in respect of Taxes (other than Taxes that represent losses or its agents, officers or employeesdamages arising from a non-Tax claim). c. The Borrower expressly waives the protections of section 1542 of the Civil Code in relation to and in connection with subparagraphs 34a. and b. above, and the waivers, releases, agreements and other undertakings by Borrower thereunder. Said section 1542 provides as follows: