Common use of Assumption of Risk and Indemnification Clause in Contracts

Assumption of Risk and Indemnification. Notwithstanding any provision to the contrary set forth in the Lease, Tenant hereby assumes all risk of (i) damage to, destruction, loss, loss of use, or theft of property of, any Tenant Party located in or about the MPOE Room, caused by casualty, theft, fire, third parties or any other matter or cause, regardless of whether the negligence of any party (including of Tenant, Tenant Party, or Third Party Contractor, as those terms are defined in Sections 10.1.1 and 10.6 of the Original Lease, respectively) caused such loss in whole or in part, or (ii) injury to persons in, upon or about the MPOE Room from any cause whatsoever (including, but not limited to, any personal injuries resulting from a slip and fall in, upon or about the MPOE Room). Tenant agrees that the Landlord Parties shall not be liable for, and are hereby released from any responsibility for, any risk assumed by Tenant pursuant to this Section 7, subject only to Landlord’s obligations below, if any. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible, for damage to, Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) or Tenant’s MPOE Security System. Subject to Section 10.5 of the Original Lease, Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties from any and all Loss incurred in connection with or arising from (a) any injury to or death of any person or the damage to or theft, destruction, loss, or loss of use of, any property or inconvenience in, on or about the MPOE Room (including, but not limited to, a slip and fall), (b) any acts, omissions or negligence of Tenant or of any person claiming by, through or under Tenant, or of any other Tenant Parties or any such person in, on or about the MPOE Room, (c) the installation, operation, maintenance, repair or removal of Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) and/or Tenant’s MPOE Security System (and any modifications or replacements of the same), (d) the use by any Tenant Party of the MPOE Room, either prior to, during, or after the expiration of the Lease Term, subject only to Landlord’s obligations below, if any. Should any Landlord Parties be named as a defendant in any suit brought against Tenant in connection with or arising out of Tenant’s use of the MPOE Room, Tenant shall pay to Landlord its reasonable out-of-pocket costs and expenses incurred in such suit, including without limitation, its actual professional fees such as reasonable appraisers’, accountants’ and attorneys’ fees, However, if Landlord is found to be wholly or partially negligent or to have acted with willful misconduct by a court of competent jurisdiction in a judgment which is either final and non-appealable or which is not appealed within sixty (60) days from the date issued, Landlord shall be responsible for paying its proportion of the applicable damage award, calculated using the percentage of Landlord’s negligence as determined by such court, or, if resulting from Landlord’s willful misconduct, then calculated based on the extent to which the damage is determined by such court to have been caused solely by Landlord’s willful misconduct. The provisions of this Section 7 shall survive the expiration or sooner termination of the Lease (as amended) with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination,

Assumption of Risk and Indemnification. Notwithstanding The Lessee does hereby assume liability for, and does hereby agree to indemnify, protect, save and keep harmless the Trust Company, the Lessor, the Agent, the Equity Participant and each Lender and their respective successors, assigns, representatives, directors, officers, employees, agents and servants (each an "Indemnitee") on an after-tax basis from and against, and does hereby agree to pay, when due, as Supplemental Rent, any provision and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including, without limitation, legal fees and expenses, of whatsoever kind or nature, whether foreseen or unforeseen, imposed upon, incurred by or with respect to or asserted against any Leased Premises or any Indemnitee (other than Taxes), in any way relating to or arising out of the contrary set forth in entering into and performance of the Lease, Tenant hereby assumes all risk of Transaction Documents including without limitation (i) damage todesign, destructionconstruction, lossassembly, loss of manufacture, financing, mortgaging, ownership, titling or retitling, lease, sublease, rental, use, installation, abandonment, dismantling, possession, operation, condition, repair, replacement, reconstruction, sale, transfer, return or theft other disposition of property of, any Tenant Party located in or about the MPOE Room, caused by casualty, theft, fire, third parties Leased Premises or any other matter or cause, regardless of whether the negligence part of any party thereof or interest therein, including without limitation those in any way relating to or arising out of or alleged to arise out of (including of TenantA) loss or damage to any property or death or injury to any Person, Tenant Party(B) any latent or other defects whether or not discoverable by any Indemnitee, the Lessee or the Permitted Sublessees, (C) any claim based on strict liability in tort, or Third Party Contractor(D) any claim based upon any noncompliance with or violation of any Environmental Laws, as those terms are defined in Sections 10.1.1 including without limitation all costs, fines and 10.6 penalties arising from any such violation or noncompliance, or from the failure to report to any applicable governmental body any spills, discharges or maintenance of the Original LeaseHazardous Materials, respectively) caused such loss in whole or in part, and including all costs and expenses of clean-up and removal of spills and Hazardous Materials; or (ii) injury any action taken by the Lessee or the Permitted Sublessees on behalf of the Lessor without authority under the Transaction Documents or out of such failure to persons inact where silence implies acceptance, or any failure on the part of the Lessee to perform or comply with any of the terms of any Transaction Document or breach of any representation or warranty of the Lessee contained in any Transaction Document or any document delivered pursuant thereto; provided, however, that nothing in this Section 4.02 shall be construed so as to require the Lessee to indemnify any Indemnitee for its own gross negligence or willful misconduct or as to matters among the individual Lenders. The Lessee shall be obligated under this Section 4.02 irrespective of whether any Indemnitee shall also be indemnified with respect to the same matter under any other agreement by any other Person. The Lessee shall forthwith upon demand of any such Indemnitee reimburse such Indemnitee for all indemnified liabilities incurred by it or about shall pay and discharge such liabilities directly. The Lessee shall be subrogated to an Indemnitee's rights in any matter with respect to which the MPOE Room from any cause whatsoever (including, but not limited to, any personal injuries resulting from a slip and fall in, upon Lessee has actually reimbursed such Indemnitee for amounts expended by it or about the MPOE Room). Tenant agrees that the Landlord Parties shall not be liable for, and are hereby released from any responsibility for, any risk assumed by Tenant has actually paid such amounts directly pursuant to this Section 74.02. In case any action, subject only suit or proceeding is brought against any Indemnitee in connection with any claim indemnified against hereunder, such Indemnitee will, promptly after receipt of notice of the commencement of such action, suit or proceeding, notify the Lessee thereof, enclosing a copy of all papers served upon such Indemnitee, but failure to Landlord’s obligations below, if any. Tenant acknowledges that Landlord give such notice or to enclose such papers shall not carry insurance onrelieve the Lessee from any liability hereunder. If no Event of Default or Unmatured Event of Default under any of the Transaction Documents shall have occurred and be continuing, no Indemnitee will settle any such action, suit or proceeding without the prior written consent of the Lessee (which will not be unreasonably withheld) unless such Indemnitee waives its right to indemnification in respect thereof. The Lessee may, and upon such Indemnitee's request will, at the Lessee's expense, resist and defend such action, suit or proceeding, or cause the same to be resisted or defended by counsel selected by the Lessee and reasonably satisfactory to such Indemnitee and in the event of any failure by the Lessee to do so, the Lessee shall not be responsible, for damage to, Tenant’s MPOE Room Equipment pay all costs and expenses (including, without limitation, the Tenant HVAC System thereinattorney's fees and expenses) or Tenant’s MPOE Security System. Subject to Section 10.5 of the Original Lease, Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties from any and all Loss incurred by such Indemnitee in connection with such action, suit or arising from (a) any injury to or death of any person or the damage to or theft, destruction, loss, or loss of use of, any property or inconvenience in, on or about the MPOE Room (including, but not limited to, a slip and fall), (b) any acts, omissions or negligence of Tenant or of any person claiming by, through or under Tenant, or of any other Tenant Parties or any such person in, on or about the MPOE Room, (c) the installation, operation, maintenance, repair or removal of Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) and/or Tenant’s MPOE Security System (and any modifications or replacements of the same), (d) the use by any Tenant Party of the MPOE Room, either prior to, during, or after the expiration of the Lease Term, subject only to Landlord’s obligations below, if any. Should any Landlord Parties be named as a defendant in any suit brought against Tenant in connection with or arising out of Tenant’s use of the MPOE Room, Tenant shall pay to Landlord its reasonable out-of-pocket costs and expenses incurred in such suit, including without limitation, its actual professional fees such as reasonable appraisers’, accountants’ and attorneys’ fees, However, if Landlord is found to be wholly or partially negligent or to have acted with willful misconduct by a court of competent jurisdiction in a judgment which is either final and non-appealable or which is not appealed within sixty (60) days from the date issued, Landlord shall be responsible for paying its proportion of the applicable damage award, calculated using the percentage of Landlord’s negligence as determined by such court, or, if resulting from Landlord’s willful misconduct, then calculated based on the extent to which the damage is determined by such court to have been caused solely by Landlord’s willful misconduct. The provisions of this Section 7 shall survive the expiration or sooner termination of the Lease (as amended) with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination,proceeding.

Assumption of Risk and Indemnification. Notwithstanding (a) Assumption of Risk: Lessee, as a material part of the consideration to Lessor, agrees that neither Lessor nor any provision Lessor Indemnified Parties (as defined in Subparagraph 8(c) above) will be liable to Lessee for, and Lessee expressly assumes the contrary set forth in the Lease, Tenant hereby assumes all risk of and waives any and all claims it may have against Lessor or any Lessor Indemnified Parties with respect to, (i) any and all damage to, destruction, loss, loss of use, to property or theft of property of, any Tenant Party located in or about the MPOE Room, caused by casualty, theft, fire, third parties or any other matter or cause, regardless of whether the negligence of any party (including of Tenant, Tenant Party, or Third Party Contractor, as those terms are defined in Sections 10.1.1 and 10.6 of the Original Lease, respectively) caused such loss in whole or in part, or (ii) injury to persons in, upon or about the MPOE Room Premises, the Building or the Project resulting from any cause whatsoever act or omission (includingexcept for the negligent or intentionally willful act or omission of Lessor or its agent or employees), but not limited to, (ii) any personal injuries resulting from a slip and fall in, upon such damage caused by other tenants or persons in or about the MPOE Room). Tenant agrees that Building or the Landlord Parties shall not be liable forProject, and are hereby released from or caused by quasi-public work, (iii) any responsibility for, any risk assumed by Tenant pursuant damage to this Section 7, subject only property entrusted to Landlord’s obligations below, if any. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible, for damage to, Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) or Tenant’s MPOE Security System. Subject to Section 10.5 employees of the Original LeaseBuilding, Tenant shall indemnify(iv) any loss of or damage to property by theft or otherwise, defend, protect, and hold harmless the Landlord Parties from any and all Loss incurred in connection with or arising from (av) any injury or damage to person or death property resulting from any casualty, explosion, falling plaster or other masonry or glass, steam, gas, electricity, water or rain which may leak from any part of the Building or any other portion of the Project or from the roof, street or subsurface or from any other place, or resulting from dampness. Neither Lessor nor any Lessor Indemnified Parties will be liable for consequential damages arising out of any person loss of the use of the Premises or any equipment or facilities therein by Lessee or any Lessee Parties or for interference with light. Lessee agrees to give prompt notice to Lessor in case of fire or accidents in the Premises or the damage to or theft, destruction, loss, or loss of use of, any property or inconvenience in, on or about the MPOE Room (including, but not limited to, a slip and fall), (b) any acts, omissions or negligence of Tenant or of any person claiming by, through or under TenantBuilding, or of any other Tenant Parties defects therein or any such person in, on in the fixtures or about the MPOE Room, (c) the installation, operation, maintenance, repair or removal of Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) and/or Tenant’s MPOE Security System (and any modifications or replacements of the same), (d) the use by any Tenant Party of the MPOE Room, either prior to, during, or after the expiration of the Lease Term, subject only to Landlord’s obligations below, if any. Should any Landlord Parties be named as a defendant in any suit brought against Tenant in connection with or arising out of Tenant’s use of the MPOE Room, Tenant shall pay to Landlord its reasonable out-of-pocket costs and expenses incurred in such suit, including without limitation, its actual professional fees such as reasonable appraisers’, accountants’ and attorneys’ fees, However, if Landlord is found to be wholly or partially negligent or to have acted with willful misconduct by a court of competent jurisdiction in a judgment which is either final and non-appealable or which is not appealed within sixty (60) days from the date issued, Landlord shall be responsible for paying its proportion of the applicable damage award, calculated using the percentage of Landlord’s negligence as determined by such court, or, if resulting from Landlord’s willful misconduct, then calculated based on the extent to which the damage is determined by such court to have been caused solely by Landlord’s willful misconduct. The provisions of this Section 7 shall survive the expiration or sooner termination of the Lease (as amended) with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination,equipment.

Assumption of Risk and Indemnification. Notwithstanding (a) Tenant's Assumption of Risk and Waiver. Tenant as a material -------------------------------------- part of the consideration to Landlord, hereby agrees that neither Landlord nor any provision Landlord Indemnified Parties (as hereinafter defined) will be liable to Tenant for, and Tenant expressly assumes the contrary set forth in the Lease, Tenant hereby assumes all risk of (i) damage and waives any and all claims it may have against Landlord or any Landlord Indemnified Parties with respect to, destruction, loss, any and all loss of use, or theft of damage to property of, any Tenant Party located in or about the MPOE Room, caused by casualty, theft, fire, third parties or any other matter or cause, regardless of whether the negligence of any party (including of Tenant, Tenant Party, or Third Party Contractor, as those terms are defined in Sections 10.1.1 and 10.6 of the Original Lease, respectively) caused such loss in whole or in part, or (ii) injury to persons in, upon or about the MPOE Room Premises, the Building or the Project resulting from any cause whatsoever (includingwhatsoever, but not limited to, any personal injuries resulting from a slip and fall in, upon or about the MPOE Room). Tenant agrees that the Landlord Parties shall not be liable for, and are hereby released from any responsibility for, any risk assumed by Tenant pursuant to this Section 7, subject only to Landlord’s obligations below, if any. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible, for damage to, Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) or Tenant’s MPOE Security System. Subject to Section 10.5 of the Original Lease, Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties from any and all Loss incurred in connection with or arising from (a) any injury to or death of any person or the damage to or theft, destruction, such loss, damage or loss of use of, any property injury caused by other tenants or inconvenience in, on persons in or about the MPOE Room (includingBuilding or the Project, but not limited tocaused to property entrusted to employees of the Building, a slip caused by theft or otherwise, or resulting from any casualty, explosion, falling plaster or other masonry or glass, steam, gas, electricity, water or rain which may leak from any part of the Building or any other portion of the Project or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place, or resulting from dampness; provided, however, that Landlord shall nevertheless be responsible to the extent and fall)in the proportion that any such loss, (b) damage or injury is ultimately determined to be caused by Landlord's gross negligence or willful misconduct; provided, further, however, that notwithstanding anything to the contrary contained in this Lease, neither Landlord nor any acts, omissions Landlord Indemnified Parties will be liable for consequential damages arising out of any loss of the use of the Premises or negligence of any equipment or facilities therein by Tenant or any Tenant Parties or for interference with light or other incorporeal hereditaments. Tenant agrees to give prompt notice to Landlord in case of any person claiming by, through fire or under Tenantaccidents in the Premises or the Building, or of any other Tenant Parties defects therein or any such person in, on in the fixtures or about the MPOE Room, (c) the installation, operation, maintenance, repair or removal of Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) and/or Tenant’s MPOE Security System (and any modifications or replacements of the same), (d) the use by any Tenant Party of the MPOE Room, either prior to, during, or after the expiration of the Lease Term, subject only to Landlord’s obligations below, if any. Should any Landlord Parties be named as a defendant in any suit brought against Tenant in connection with or arising out of Tenant’s use of the MPOE Room, Tenant shall pay to Landlord its reasonable out-of-pocket costs and expenses incurred in such suit, including without limitation, its actual professional fees such as reasonable appraisers’, accountants’ and attorneys’ fees, However, if Landlord is found to be wholly or partially negligent or to have acted with willful misconduct by a court of competent jurisdiction in a judgment which is either final and non-appealable or which is not appealed within sixty (60) days from the date issued, Landlord shall be responsible for paying its proportion of the applicable damage award, calculated using the percentage of Landlord’s negligence as determined by such court, or, if resulting from Landlord’s willful misconduct, then calculated based on the extent to which the damage is determined by such court to have been caused solely by Landlord’s willful misconduct. The provisions of this Section 7 shall survive the expiration or sooner termination of the Lease (as amended) with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination,equipment.

Assumption of Risk and Indemnification. Notwithstanding (a) The Lessee does hereby assume liability for, and does hereby agree to indemnify, protect, save and keep harmless the Trust Company, the Lessor, the Agent, the Equity Participant and each Lender and their respective successors, assigns, representatives, directors, officers, employees, agents and servants (each an "Indemnitee") on an after-tax basis from and against, and does hereby agree to pay, when due, as Supplemental Rent, any provision and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including, without limitation, legal fees and expenses, of whatsoever kind or nature, whether foreseen or unforeseen, imposed upon, incurred by or with respect to or asserted against any Leased Premises or any Indemnitee (other than Taxes), in any way relating to or arising out of the contrary set forth in entering into and performance of the Lease, Tenant hereby assumes all risk of Transaction Documents including without limitation (i) damage todesign, destructionconstruction, lossassembly, loss of manufacture, financing, mortgaging, ownership, titling or retitling, lease, sublease, rental, use, installation, abandonment, dismantling, possession, operation, condition, repair, replacement, reconstruction, sale, transfer, return or theft other disposition of property of, any Tenant Party located in or about the MPOE Room, caused by casualty, theft, fire, third parties Leased Premises or any other matter or cause, regardless of whether the negligence part of any party thereof or interest therein, including without limitation those in any way relating to or arising out of or alleged to arise out of (including of TenantA) loss or damage to any property or death or injury to any Person, Tenant Party(B) any latent or other defects whether or not discoverable by any Indemnitee, the Lessee or the Permitted Sublessees, (C) any claim based on strict liability in tort, or Third Party Contractor(D) any claim based upon any noncompliance with or violation of any Environmental Laws, as those terms are defined in Sections 10.1.1 including without limitation all costs, fines and 10.6 penalties arising from any such violation or noncompliance, or from the failure to report to any applicable governmental body any spills, discharges or maintenance of the Original LeaseHazardous Materials, respectively) caused such loss in whole or in part, and including all costs and expenses of clean-up and removal of spills and Hazardous Materials; or (ii) injury any action taken by the Lessee or the Permitted Sublessees on behalf of the Lessor without authority under the Transaction Documents or out of such failure to persons inact where silence implies acceptance, or any failure on the part of the Lessee to perform or comply with any of the terms of any Transaction Document or breach of any representation or warranty of the Lessee contained in any Transaction Document or any document delivered pursuant thereto; provided, however, that nothing in this Section 4.02 shall be construed so as to require the Lessee to indemnify any Indemnitee for its own gross negligence or willful misconduct or as to matters among the individual Lenders. The Lessee shall be obligated under this Section 4.02 irrespective of whether any Indemnitee shall also be indemnified with respect to the same matter under any other agreement by any other Person. The Lessee shall forthwith upon demand of any such Indemnitee reimburse such Indemnitee for all indemnified liabilities incurred by it or about shall pay and discharge such liabilities directly. The Lessee shall be subrogated to an Indemnitee's rights in any matter with respect to which the MPOE Room from any cause whatsoever (including, but not limited to, any personal injuries resulting from a slip and fall in, upon Lessee has actually reimbursed such Indemnitee for amounts expended by it or about the MPOE Room). Tenant agrees that the Landlord Parties shall not be liable for, and are hereby released from any responsibility for, any risk assumed by Tenant has actually paid such amounts directly pursuant to this Section 74.02. In case any action, subject only suit or proceeding is brought against any Indemnitee in connection with any claim indemnified against hereunder, such Indemnitee will, promptly after receipt of notice of the commencement of such action, suit or proceeding, notify the Lessee thereof, enclosing a copy of all papers served upon such Indemnitee, but failure to Landlord’s obligations below, if any. Tenant acknowledges that Landlord give such notice or to enclose such papers shall not carry insurance onrelieve the Lessee from any liability hereunder. If no Event of Default or Unmatured Event of Default under any of the Transaction Documents shall have occurred and be continuing, no Indemnitee will settle any such action, suit or proceeding without the prior written consent of the Lessee (which will not be unreasonably withheld) unless such Indemnitee waives its right to indemnification in respect thereof. The Lessee may, and upon such Indemnitee's request will, at the Lessee's expense, resist and defend such action, suit or proceeding, or cause the same to be resisted or defended by counsel selected by the Lessee and reasonably satisfactory to such Indemnitee and in the event of any failure by the Lessee to do so, the Lessee shall not be responsible, for damage to, Tenant’s MPOE Room Equipment pay all costs and expenses (including, without limitation, the Tenant HVAC System thereinattorney's fees and expenses) or Tenant’s MPOE Security System. Subject to Section 10.5 of the Original Lease, Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties from any and all Loss incurred by such Indemnitee in connection with such action, suit or arising from (a) any injury to or death of any person or the damage to or theft, destruction, loss, or loss of use of, any property or inconvenience in, on or about the MPOE Room (including, but not limited to, a slip and fall), proceeding. (b) any actsThe Lessee agrees promptly to pay when due, omissions and to indemnify and hold each Indemnitee, harmless from, all license and registration fees and all taxes, fees, levies, imposts, recording duties, charges or negligence of Tenant or withholdings of any person claiming nature whatsoever, together with any assessments, penalties, fines, additions to tax or interest thereon (individually, a "Tax," and collectively called "Taxes"), howsoever imposed (whether imposed upon any Indemnitee, the Leased Premises or any part thereof or interest therein or otherwise), by any federal, state or local government or taxing authority in the United States, upon or with respect to, based upon or measured by, through : (i) any Leased Premises or under Tenant, or any part of any other Tenant Parties thereof or any such person in, on or about the MPOE Room, interest therein; (cii) the installationconstruction, acquisition, purchase, financing, mortgaging, ownership, acceptance, rejection, delivery, leasing, subleasing, insuring, inspection, registration, assembly, abandonment, preparation, installment, possession, use, operation, maintenancereturn, repair presence, storage, repair, transfer of title, modification, rebuilding, imposition of any lien, sale or removal other disposition of Tenant’s MPOE Room Equipment any Leased Premises or any part of any thereof or interest therein; (iii) the payment of Basic Rent, Supplemental Rent (including, without limitation, Termination Value) and other sums payable hereunder, the Tenant HVAC System rentals, receipts or earnings arising from the purchase, financing, ownership, delivery, leasing, possession, use, operation, return, transfer of title, sale or other disposition of any Leased Premises or any part thereof or interest therein; or (iv) and/or Tenant’s MPOE Security System (this Participation Agreement the other Transaction Documents and any modifications all documents or replacements of the same), (d) the use by any Tenant Party of the MPOE Room, either prior to, during, or after the expiration of the Lease Term, subject only to Landlord’s obligations below, if any. Should any Landlord Parties be named as a defendant in any suit brought against Tenant agreements executed and delivered in connection with or arising out of Tenant’s use the purchase, improvement and leasing of the MPOE Room, Tenant shall pay to Landlord its reasonable out-of-pocket costs and expenses incurred in such suit, including without limitation, its actual professional fees such as reasonable appraisers’, accountants’ and attorneys’ fees, However, if Landlord is found to be wholly or partially negligent or to have acted with willful misconduct by a court of competent jurisdiction in a judgment which is either final and non-appealable or which is not appealed within sixty (60) days from Leased Premises. Notwithstanding the date issued, Landlord shall be responsible for paying its proportion of the applicable damage award, calculated using the percentage of Landlord’s negligence as determined by such court, or, if resulting from Landlord’s willful misconduct, then calculated based on the extent to which the damage is determined by such court to have been caused solely by Landlord’s willful misconduct. The provisions of this Section 7 4.02(b), the Lessee shall survive the expiration or sooner termination not be required to indemnify any Indemnitee in respect of any of the Lease (as amended) with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination,following:

Assumption of Risk and Indemnification. Notwithstanding (a) Tenant's Assumption of Risk and Waiver. Tenant, as a material part of the consideration to Landlord, hereby agrees that neither Landlord nor any provision Indemnified Landlord Party (defined in Subparagraph 18(b) below) will be liable to Tenant for, and Tenant expressly assumes the contrary set forth in the Lease, Tenant hereby assumes all risk of and waives any and all claims it may have against Landlord or any Landlord Indemnified Parties with respect to: (i) any and all damage to, destruction, loss, loss of use, to property or theft of property of, any Tenant Party located in or about the MPOE Room, caused by casualty, theft, fire, third parties or any other matter or cause, regardless of whether the negligence of any party (including of Tenant, Tenant Party, or Third Party Contractor, as those terms are defined in Sections 10.1.1 and 10.6 of the Original Lease, respectively) caused such loss in whole or in part, or (ii) injury to persons in, upon or about the MPOE Room Premises, the Buildings or the Development resulting from any cause whatsoever act or omission of Landlord or of any Indemnified Landlord Party, except for any active negligence or willful misconduct of any Indemnified Landlord Party; (including, but not limited to, ii) any personal injuries resulting from a slip and fall in, upon such damage caused by other tenants or persons in or about the MPOE Room)Building or the Development, or caused by quasi-public work; (iii) any damage to personal property that Tenant entrusts to any person or entity, (iv) any loss of or damage to property by theft or otherwise, or (v) any injury or damage to persons or property resulting from any casualty, explosion, falling plaster or other masonry or glass, steam, gas, electricity, water or rain which may leak from any part of the Buildings or any other portion of the Development or from the pipes, appliances or plumbing works therein or from the roof, street or subsurface or from any other place, or resulting from dampness. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Lease, neither Landlord nor any Landlord Indemnified Parties will be liable for consequential damages arising out of any loss of the use of the Premises or any equipment or facilities therein by Tenant or any Tenant Parties or for interference with light or other incorporeal hereditaments. Tenant agrees that to give prompt notice to Landlord in case of fire or accidents in the Landlord Parties shall not be liable for, and are hereby released from any responsibility for, any risk assumed by Tenant pursuant to this Section 7, subject only to Landlord’s obligations below, if any. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible, for damage to, Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) or Tenant’s MPOE Security System. Subject to Section 10.5 of the Original Lease, Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties from any and all Loss incurred in connection with or arising from (a) any injury to or death of any person Premises or the damage to or theft, destruction, loss, or loss of use of, any property or inconvenience in, on or about the MPOE Room (including, but not limited to, a slip and fall), (b) any acts, omissions or negligence of Tenant or of any person claiming by, through or under TenantBuildings, or of any other Tenant Parties defects therein or any such person in, on in the fixtures or about the MPOE Room, (c) the installation, operation, maintenance, repair or removal of Tenant’s MPOE Room Equipment (including, without limitation, the Tenant HVAC System therein) and/or Tenant’s MPOE Security System (and any modifications or replacements of the same), (d) the use by any Tenant Party of the MPOE Room, either prior to, during, or after the expiration of the Lease Term, subject only to Landlord’s obligations below, if any. Should any Landlord Parties be named as a defendant in any suit brought against Tenant in connection with or arising out of Tenant’s use of the MPOE Room, Tenant shall pay to Landlord its reasonable out-of-pocket costs and expenses incurred in such suit, including without limitation, its actual professional fees such as reasonable appraisers’, accountants’ and attorneys’ fees, However, if Landlord is found to be wholly or partially negligent or to have acted with willful misconduct by a court of competent jurisdiction in a judgment which is either final and non-appealable or which is not appealed within sixty (60) days from the date issued, Landlord shall be responsible for paying its proportion of the applicable damage award, calculated using the percentage of Landlord’s negligence as determined by such court, or, if resulting from Landlord’s willful misconduct, then calculated based on the extent to which the damage is determined by such court to have been caused solely by Landlord’s willful misconduct. The provisions of this Section 7 shall survive the expiration or sooner termination of the Lease (as amended) with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination,equipment.