Common use of Liabilities; Indemnification Clause in Contracts

Liabilities; Indemnification. (a) Notwithstanding the other provisions of this Trust Agreement, the Depositor, by entering into this Trust Agreement, agrees to be liable, directly to the injured party, for the entire amount of any loss, liability, expense, damage or injury (collectively, a "Loss") (other than those incurred by a Holder as a result of the performance of the Eligible Treasuries, market fluctuations, the level of the Applicable Reference Price of Crude Oil or other similar market or investment risks associated with ownership of the Down MacroShares) arising out of any allegation of infringement of the intellectual property rights of third parties. If the Trust Assets at the time the claim is made were not previously used to pay in full all Outstanding Down MacroShares, the Trust Assets would be used to pay any such losses, claims, damages or liabilities. (b) The Depositor shall indemnify and hold harmless the Trustee and its officers, directors, employees and agents from and against any Loss suffered or sustained by reason of the acts performed or omitted by the Trustee pursuant to this Trust Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any action, proceeding or claim including, without limitation, any action, proceeding or claim relating to or arising from any alleged infringement of intellectual property rights of third parties; provided, however, that the Depositor's duty to indemnify under this Section 9.3(b) shall not extend to any Losses (i) for which the Trustee has a right to indemnification under any other provision of this Trust Agreement and for which it and, if applicable, its officers, directors, employees and agents, have, in fact, been indemnified, or (ii) that are caused by or result from the breach of contract by, or the fraud, gross negligence or willful misconduct of, the Trustee or its officers, directors, employees or agents. (c) The Depositor and its members, managers, officers, employees, affiliates (as such term is defined in Regulation S-X of the Securities Act) and subsidiaries (each, a "Depositor Indemnified Party") shall be indemnified by the Down Trust and held harmless against any loss, liability or expense incurred hereunder without (1) gross negligence, bad faith, willful misconduct or willful malfeasance on the part of such Depositor Indemnified Party arising out of or in connection with the performance of its obligations hereunder or any actions taken in accordance with the provisions of this Trust Agreement or (2) reckless disregard on the part of such Depositor Indemnified Party of its obligations and duties under this Trust Agreement. Each Depositor Indemnified Party shall also be indemnified by the Down Trust and held harmless against any loss, liability or expense arising under the Income Distribution Agreement, the Settlement Contracts or any Participants Agreement insofar as such loss, liability or expense arises from any untrue statement or alleged untrue statement of a material fact contained in any written statement provided to the Depositor by any of the Calculation Agent, the Administrative Agent and the Trustee. Such indemnity shall include payment from the Down Trust of the costs and expenses incurred by such Depositor Indemnified Party in defending itself against any such indemnified claim or liability.

Liabilities; Indemnification. 39.1 Landlord shall be solely responsible for (a1) Notwithstanding the other provisions of this Trust Agreementphysical, the Depositor, by entering into this Trust Agreement, agrees to be liable, directly to the injured party, for the entire amount of any loss, liability, expense, damage or injury (collectively, a "Loss") (other than those incurred by a Holder as a result geotechnical and/or environmental condition of the performance of the Eligible TreasuriesPremises, market fluctuations, the level of the Applicable Reference Price of Crude Oil or other similar market or investment risks associated with ownership of the Down MacroShares) arising out of any allegation of infringement of the intellectual property rights of third parties. If the Trust Assets at the time the claim is made were not previously used to pay in full all Outstanding Down MacroShares, the Trust Assets would be used to pay any such losses, claims, damages or liabilities. (b) The Depositor shall indemnify and hold harmless the Trustee and its officers, directors, employees and agents from and against any Loss suffered or sustained by reason of the acts performed or omitted by the Trustee pursuant to this Trust Agreement, including any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any action, proceeding or claim including, without limitation, any actionHazardous Materials, proceeding any Regulated, Designated or claim relating Non-Inert Materials in, on, under, or above, or about the Premises (including, but not limited to, all previously landfilled materials, soils and groundwater conditions) which occurred or were in existence prior to July 1, 2011, and (2) any laws applicable to such conditions, including without limitation, Hazardous Materials laws. Tenant shall be responsible for the cost of all Improvements as described in Exhibits B.1 and B.3, including to the extent that such work described in Exhibits B.1 and B.3 remediates the liability for pre-existing conditions on the Premises. 39.2 Subject to the limitations set forth in Section 39.3 hereof, Landlord does hereby indemnify and hold Tenant, its owners, agents, subtenants and assigns free and harmless against (a) any damage or arising deficiency resulting from any alleged infringement misrepresentation, breach of intellectual property rights warranty or non-fulfillment of third parties; provided, however, that the Depositor's duty to indemnify under this Section 9.3(b) shall not extend to any Losses (i) for which the Trustee has a right to indemnification under any other provision provisions of this Trust Agreement and for which it and, if applicable, its officers, directors, employees and agents, have, in fact, been indemnified, or (ii) that are caused by or result from the breach of contract by, or the fraud, gross negligence or willful misconduct of, the Trustee or its officers, directors, employees or agents. (c) The Depositor and its members, managers, officers, employees, affiliates (as such term is defined in Regulation S-X of the Securities Act) and subsidiaries (each, a "Depositor Indemnified Party") shall be indemnified by the Down Trust and held harmless against any loss, liability or expense incurred hereunder without (1) gross negligence, bad faith, willful misconduct or willful malfeasance Lease on the part of such Depositor Indemnified Party the City or from any misrepresentation in or omission from any certificate, financial record, or other instrument furnished to or to be furnished to Tenant pursuant to the terms of this Lease; and (b) all actions, suits, proceedings, demands, assessments, financial assurance requirements, judgments, costs, and expenses, of any kind, on account of any business operations or any other activities occurring on the Premises prior to July 1, 2011; and (c) any and all claims for damages of any kind, including cleanup/corrective action expenses and reasonable attorney’s fees and costs of any kind related to the presence, spillage, leaking, maintenance, delivery or storage of any toxic, Hhazardous Waste Materials or Regulated, Designated waste materials, or Non-Inert waste materials landfilled/placed on the Premises at any time prior to July 1, 2011. The indemnity obligations of this Section shall survive this Lease. 39.3 Tenant shall indemnify, defend, and hold harmless Landlord from any loss, cost, damage, liability, judgment, or expense, including consultants and attorneys’ fees, actually incurred or sustained by Landlord in connection with all actions, claims, suits, penalties, obligations, liabilities, damages to the Premises, injuries to persons, environmental claims, including but not limited to (a) the introduction of Hazardous Materials to the Premises, or (b) the Exacerbation of Existing Contamination or the Exacerbation of any Unknown Contamination which may be caused by Tenant or its agents’ unapproved activities pursuant to this Lease or arising out of or in any connection with such activities, whether such damage or claim shall accrue or be discovered before or after the performance termination of this Lease (or any breach by licensees of any of its obligations hereunder under this Lease), Tenant specifically, and not by way of limitation agrees that it shall be responsible for compensating Landlord for any violation by Tenant or its agents of an order or any actions post-closure regulatory requirements including, but not limited to, any monitoring and reporting which Tenant specifically assumes pursuant to Exhibit B.3 hereof; however, Tenant shall be obligated to provide Landlord with reasonable cooperation and access in order for Landlord to comply with its legal obligations. This shall include providing ingress and egress to City or its contractor, as well as access to affected areas, including the removal of any equipment, piles, or other obstructions as reasonably needed to perform the required work, as well as to provide copies of any documents or records necessary pertaining to compliance requirements. Provided, however, except as set forth in Exhibit B-3 hereof, Tenant shall have no direct obligation to comply with any orders or any post-closure regulatory requirements including, but not limited to any maintenance, monitoring or reporting. However, notwithstanding anything to the contrary contained herein, Tenant shall have no liability under this Lease as a result of the mere discovery of any Hazardous Materials on the Premises not previously disclosed in the environmental reports or the discovery of any existing contamination in a location on the Premises previously unknown to Landlord. As used herein, “Exacerbation” shall mean any unapproved action taken by Tenant or its agents the effect of which is to cause the spread or migration of existing contamination or any unknown contamination to areas of soil and/or groundwater on the Premises that would not have occurred but for such actions. “Exacerbation” shall exclude any excavation or grading activities required for the construction of the Initial Improvements on the Premises provided that such activities are conducted in accordance with the provisions standard industry practices and precautions and are performed in accordance with applicable laws, statutes, codes and regulations. The indemnity obligations of this Trust Agreement or (2) reckless disregard on the part of such Depositor Indemnified Party of its obligations and duties under section shall survive this Trust Agreement. Each Depositor Indemnified Party shall also be indemnified by the Down Trust and held harmless against any loss, liability or expense arising under the Income Distribution Agreement, the Settlement Contracts or any Participants Agreement insofar as such loss, liability or expense arises from any untrue statement or alleged untrue statement of a material fact contained in any written statement provided to the Depositor by any of the Calculation Agent, the Administrative Agent and the Trustee. Such indemnity shall include payment from the Down Trust of the costs and expenses incurred by such Depositor Indemnified Party in defending itself against any such indemnified claim or liabilityLease.