Common use of Indemnification of Buyer by Seller Clause in Contracts

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contractcontract (other than any breach by a Buyer Indemnitee of any PPA or Site License based on any breach by Seller of its obligations under this Agreement to perform obligations under such PPA or Site License on behalf of Buyer)) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or ), (2) a breach by Seller of its representations, warranties or obligations under any Transaction Document or in any Payment Certificate, including any breach of a PPA or Site License relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier in respect of EPC Services or Facility Services that Seller is obligated to perform on behalf of Buyer in fulfillment of such obligations under the AgreementPPA or Site License including, for clarity, a breach of Section 7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier, or (3) any injury, death, or damage to property caused by a defect in a Facility; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants covenants, representations and warranties under this Agreement or the inability of Buyer to ultimately utilize any tax benefits. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPAPPA or Site License) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer. (c) Seller acknowledges and agrees that each PPA Customer is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, at its sole option, elect to assign to a PPA Customer the right to seek indemnification directly from Seller in the event that Buyer owes to such PPA Customer any indemnification obligations arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer. (c) Seller acknowledges and agrees that each PPA Customer is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, at its sole option, elect to assign to a PPA Customer the right to seek indemnification directly from Seller in the event that Buyer owes to such PPA Customer any indemnification obligations arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

Indemnification of Buyer by Seller. (a) Subject to Section 8.3, Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, shareholders, Affiliates and agents (each, a “"Buyer Indemnitee”") from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1each, a "Buyer Indemnifiable Loss") a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with (i) any breach by Seller of any covenant or agreement of Seller contained in this Agreement or failure or inaccuracy of any representation or warranty of Seller contained in this Agreement, (ii) the Excluded Liabilities, (iii) noncompliance by Seller with any bulk sales or transfer laws as provided in Section 10.12, and (iv) any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with Seller's ownership or operation of the negligent Excluded Assets on or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by after the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefitsClosing Date. (b) Except Subject to Sections 8.3(a), (e), (f) and (g) and to the other provisions of this Section 8.2(b) and so long as otherwise set forth Buyer complies with the Exempt Facilities Operating Protocols relating to an issue of outstanding Revenue Bonds, Seller agrees to indemnify, defend and hold harmless the Buyer Indemnitees from and against Buyer's Tax Losses (as defined below) upon a final decree or judgment of any federal court or a final action by the IRS (a "Final Determination") that the related Exempt Facilities are "tax-exempt bond financed property" under Section 168(g)(5) of the Code by reason of such issue of Revenue Bonds remaining outstanding from and after the Closing Date. No such decree or action shall be considered to be a Final Determination unless Seller has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same either directly or in the name of Buyer, and until conclusion of any appellate review, if sought. The maximum aggregate amount of Buyer's Tax Losses for which Seller shall be obligated to indemnify the Buyer Indemnitees both (i) under this Section 8.2(b) and (ii) under the corresponding Section 8.2(b) of the Arizona Gas Purchase Agreement shall be $1,500,000. "Buyer's Tax Losses" shall mean the amount equal to the present value (calculated using a discount rate of 10 percent per annum) of the difference (multiplied by the applicable combined federal and State of Arizona corporate tax rate of Buyer Indemnitee) for each affected tax year between the respective dollar amounts of (x) depreciation of the related Exempt Facilities allowed under Section 168(g) of the Code, and (y) the depreciation of such Exempt Facilities that would be allowable under Section 168 of the Code if the Exempt Facilities were not "tax-exempt bond financed property." The indemnity granted by Seller in this AgreementSection 8.2(b) shall terminate at 5:00 p.m., local time in New York, New York, on the event seventh anniversary of the Closing Date, provided that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System such termination shall not affect Seller's obligations under this Agreement, Section 8.2(b) if Buyer provided Seller shall indemnify and hold Buyer harmless with proper notice of the claim or event for any which indemnification is sought prior to such liability, cost, loss or expense incurred by Buyertermination.

Indemnification of Buyer by Seller. (a) Subject to Section 8.3, Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, shareholders, Affiliates and agents (each, a “"Buyer Indemnitee”") from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1each, a "Buyer Indemnifiable Loss") a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with (i) any breach by Seller of any covenant or agreement of Seller contained in this Agreement or failure or inaccuracy of any representation or warranty of Seller contained in this Agreement, (ii) the Excluded Liabilities, (iii) noncompliance by Seller with any bulk sales or transfer laws as provided in Section 10.12, and (iv) any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with Seller's ownership or operation of the negligent Excluded Assets on or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by after the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefitsClosing Date. (b) Except Subject to Sections 8.3(a), (e), (f) and (g) and the other provisions of this Section 8.2(b) and so long as otherwise set forth Buyer complies with the Exempt Facilities Operating Protocols relating to an issue of outstanding Revenue Bonds, Seller agrees to indemnify, defend and hold harmless the Buyer Indemnitees from and against Buyer's Tax Losses (as defined below) upon a final decree or judgment of any federal court or a final action by the IRS (a "Final Determination") that the related Exempt Facilities are "tax-exempt bond financed property" under Section 168(g)(5) of the Code by reason of such issue of Revenue Bonds remaining outstanding from and after the Closing Date. No such decree or action shall be considered to be a Final Determination unless Seller has been given written notice and, if it is so desired and is legally allowed, has been afforded the opportunity to contest the same either directly or in the name of Buyer, and until conclusion of any appellate review, if sought. The maximum aggregate amount of Buyer's Tax Losses for which Seller shall be obligated to indemnify the Buyer Indemnitees both (i) under this Section 8.2(b) and (ii) under the corresponding Section 8.2(b) of the Arizona Electric Purchase Agreement shall be $1,500,000. "Buyer's Tax Losses" shall mean the amount equal to the present value (calculated using a discount rate of 10 percent per annum) of the difference (multiplied by the applicable combined federal and State of Arizona corporate tax rate of Buyer Indemnitee) for each affected tax year between the respective dollar amounts of (x) depreciation of the related Exempt Facilities allowed under Section 168(g) of the Code, and (y) the depreciation of such Exempt Facilities that would be allowable under Section 168 of the Code if the Exempt Facilities were not "tax-exempt bond financed property." The indemnity granted by Seller in this AgreementSection 8.2(b) shall terminate at 5:00 p.m., local time in New York, New York, on the event seventh anniversary of the Closing Date, provided that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System such termination shall not affect Seller's obligations under this Agreement, Section 8.2(b) if Buyer provided Seller shall indemnify and hold Buyer harmless with proper notice of the claim or event for any which indemnification is sought prior to such liability, cost, loss or expense incurred by Buyertermination.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.110.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contractcontract (other than any breach by a Buyer Indemnitee of any PPA or Site License based on any breach by Seller of its obligations under this Agreement to perform obligations under such PPA or Site License on behalf of Buyer)) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or ), (2) a breach by Seller of its representations, warranties or obligations under the Agreement; provided thatany Transaction Document or in any Payment Certificate, Seller shall have no obligation to indemnify Buyer to the extent caused by including any breach of a PPA or Site License relating to, resulting from or arising out of or in connection with any negligenceact or omission by Seller, fraud or willful misconduct of a Buyer IndemniteeSeller Affiliate, the breach by Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier in respect of EPC Services or Facility Services that Seller is obligated to perform on behalf of Buyer in fulfillment of such obligations under the PPA or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits. (b) Except as otherwise set forth in this AgreementSite License including, in the event that Buyer incurs any liabilityfor clarity, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.of

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses (other than Indemnifiable Losses addressed in Section 11.1) asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) Third Party Claim, and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with (i) the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control any Seller Personnel (other than matters addressed separately in Section 13.111.1, which shall be governed by the terms thereof) or ), (2ii) a breach by Seller of its representations, warranties or obligations under this Agreement or in any Seller’s Certificate of Commissioning, or any breach of a Site Lease or Interconnection Agreement, to the Agreementextent relating to, resulting from or arising out of or in connection with any act or omission by Seller or any Seller Personnel, or (iii) any injury, death, or damage to property caused by a defect in a New System; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of (x) any negligence, fraud or willful misconduct of a Buyer Indemnitee, except to the extent caused by any Seller Personnel, (y) the breach by Buyer or any Buyer Indemnitee of its covenants covenants, representations and warranties under this Agreement or any Site Lease or Interconnection Agreement, except to the extent such a breach is caused by Seller’s (or any Seller Personnel’s) breach of this Agreement (including any failure to perform obligations on behalf of Buyer in accordance with the terms of this Agreement), or (z) the inability of Buyer to ultimately utilize any tax benefits. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer Site Landlord (including relating to a breach of a PPASite Lease) in relation to the repurchase by or return to Seller of any Bloom New System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer. (c) Seller acknowledges and agrees that each Site Landlord is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, with Seller’s reasonable consent following cooperative discussions between the Parties regarding the least disruptive manner of resolving the applicable Site Landlord claim, elect to assign to a Site Landlord the right to seek indemnification directly from Seller in the event that Buyer owes to such Site Landlord any indemnification obligations arising out of or in connection with any breach of a Site Lease arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses (other than Indemnifiable Losses addressed in Section 11.1) asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) Third Party Claim, and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with (i) the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control any Seller Personnel (other than matters addressed separately in Section 13.111.1, which shall be governed by the terms thereof) or ), (2ii) a breach by Seller of its representations, warranties or obligations under this Agreement or in any Seller’s Certificate of Commissioning, or any breach of a Site Lease or Interconnection Agreement, to the Agreementextent relating to, resulting from or arising out of or in connection with any act or omission by Seller or any Seller Personnel, (iii) any alleged violation by Seller of Environmental Requirements resulting in claims, penalties, fines, or other enforcement actions or (iv) any injury, death, or damage to property caused by a defect in a Phase 2 New System; 49 DM_US 164459518-11.107145.0012 provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of (x) any negligence, fraud or willful misconduct of a Buyer Indemnitee, except to the extent caused by any Seller Personnel, (y) the breach by Buyer or any Buyer Indemnitee of its covenants covenants, representations and warranties under this Agreement or any Site Lease or Interconnection Agreement, except to the extent such a breach is caused by Seller’s (or any Seller Personnel’s) breach of this Agreement (including any failure to perform obligations on behalf of Buyer in accordance with the terms of this Agreement), or (z) the inability of Buyer to ultimately utilize any tax benefitsbenefits solely as a result of insufficient taxable income or tax liability. (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer Site Landlord (including relating to a breach of a PPASite Lease) in relation to the repurchase by or return to Seller of any Bloom Phase 2 New System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer. (c) Seller acknowledges and agrees that each Site Landlord is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, with Seller’s reasonable consent following cooperative discussions between the Parties regarding the least disruptive manner of resolving the applicable Site Landlord claim, elect to assign to a Site Landlord the right to seek indemnification directly from Seller in the event that Buyer owes to such Site Landlord any indemnification obligations arising out of or in connection with any breach of a Site Lease arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.

Indemnification of Buyer by Seller. (a) The Seller shall hereby agrees to pay and assume liability for, and does hereby agree to indemnify, defend protect, save and hold keep harmless the Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses liabilities, obligations, losses, damages, penalties, claims (including claims by any employee of such Seller or any of its servants, crew or agents), actions, suits and related costs, expenses and disbursements, including reasonable legal fees and expenses, of whatsoever kind and nature, imposed on, asserted against or suffered incurred by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and collectively, "Losses"), in any way relating to, resulting from to or arising out of or alleged to be attributable to, related to or arising out of (i) any inaccuracy in connection with any Third Party Claims against representation or warranty of the Seller in this Agreement or any breach or nonfulfillment of any covenant, agreement or other obligation of the Seller, (ii) Encumbrances arising as a Buyer Indemnitee matter of law from events occurring prior to the extent Closing Date or, in the case of and with respect to the M/V Rita Candies, prior to its delivery pursuant to Sxxxxon 2.2, or (iii) subject to the general principles set forth in Section 1.3, any Losses sustained by Buyer arising out of or in connection with related to Seller's ownership or operation of the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer Vessels prior to the extent caused by or arising out Closing Date or, in the case of any negligencethe M/V Rita Candies, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of prior to its covenants and warranties under this Agreement or the inability delivery pursuant to utilize any tax benefitsSectxxx 2.2. (b) Except as The representations and warranties of the Seller to the Buyer and the obligation of the Seller to indemnify the Buyer pursuant to Section 6.1(a) shall survive the Closing until July 31, 2000, except in the case of a breach of, or claim for indemnification based on the breach of, a representation or warranty contained in Section 3.4 hereof; provided that the termination of the Seller's obligation to indemnify the Buyer contained in this Section 6.1(b) shall not apply to indemnification for Losses which has been the subject of a written notice to the Seller prior to July 31, 2000, which notice will preserve such claim until it is liquidated or otherwise finally resolved pursuant to the procedures set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by BuyerSection 6.3 hereof.

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, shareholders, Affiliates and agents (each, a “"Buyer Indemnitee”") from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1each, a "Buyer Indemnifiable Loss") a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with (i) any breach by Seller of any covenant or agreement of Seller contained in this Agreement or the representations and warranties contained in Section 4.1, 4.2 and 4.3, (ii) the Excluded DLC Liabilities, (iii) noncompliance by Seller with any bulk sales or transfer laws as provided in Section 112 114 11.14, and (iv) any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with Seller's ownership or operation of the negligent Excluded DLC Assets on or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by after the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefitsAuction Closing Date. (b) Except as otherwise set forth Seller shall indemnify, defend and hold harmless each Buyer Indemnitee from and against any and all Buyer Indemnifiable Losses in any way relating to, resulting from or arising out of or in connection with (i) any costs and expenses incurred after the date of this Agreement, and in furtherance of consummation of the transactions contemplated herein, up to a maximum amount of ten million dollars ($10,000,000), in the event that of a Special Termination (as hereinafter defined), and (ii) any claims asserted against a Buyer incurs any liability, cost, loss Indemnitee arising out of or expense to a PPA Customer (including relating to a breach the Agreement and Plan of a PPAMerger, dated as of April 5, 1998, by and between DQE, Inc. and Allegheny Energy, Inc.. A "Special Termination" shall be deemed to have occurred if (i) Buyer terminates this Agreement pursuant to Section 10.1(j) hereof, or (ii) Buyer or Seller terminate this Agreement pursuant to Section 10.1(b)(i) hereof, or the Auction Closing fails to occur because the condition set forth in relation to the repurchase by any of Sections 8.1(c), 8.2(c) or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.8.3

Indemnification of Buyer by Seller. (a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1i) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contractcontract (other than any breach by a Buyer Indemnitee of any PPA or Site License based on any breach by Seller of its obligations under this Agreement to perform obligations under such PPA or Site License on behalf of Buyer)) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits.71 (b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPAPPA or Site License) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer. (c) Seller acknowledges and agrees that each PPA Customer is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, at its sole option, elect to assign to a PPA Customer the right to seek indemnification directly from Seller in the event that Buyer owes to such PPA Customer any indemnification obligations arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.