1Indemnification. Tenant shall indemnify, pay on behalf (when necessary), defend and hold harmless the Landlord, and Landlords’ property manager, trustees, board members, officers, directors, controlling entities, contractors, mortgagees, employees, consultants, attorneys, agents, representatives, parent companies, subsidiaries, members, owners, partners, shareholders and affiliates and all of their respective successors and assigns (collectively the “Landlord Indemnified Parties”) from and against all third party claims, costs, liabilities, direct and consequential losses, damages, penalties, recoveries, suits, judgments, executions, direct and consequential (including injunction-related) costs and expenses of whatever nature, including reasonable attorney’s fees and court costs, arising out of (a) injury to persons or damage to property in the Premises or (b) injury to persons or damage to property wherever situated (other than in the Premises) resulting from any act or omission of Tenant or (c) resulting from Xxxxxx’s occupancy or use of the Premises. This indemnity provision also pertains to work or installation done by the Tenant, its agents, contractors, employees, or invitees on the Premises during the term of this Lease and during the period of time, if any, prior to the commencement of this Lease for which the Tenant has been allowed access to the Premises. Any liability associated with the work or installation performed by contractors includes a resultant mechanic’s liens and monies due Page 8 of 27 LL Initials: T Initials: on account of such work. This provision shall also survive beyond the termination of this Lease for a period of one year. Landlord shall indemnify, pay on behalf (when necessary), defend and hold harmless the Tenant from and against any and all claims, demands, liabilities, losses and/or damages to Tenant as the result of any grossly negligent or intentional act by Landlord and/or for the breach of any of Landlord’s Representations and Warranties contained herein. In the event that any action or proceeding is brought against Tenant, and the foregoing indemnity is applicable to such action or proceeding, then Landlord, upon notice from Tenant, shall resist and defend such action or proceeding. This provision shall also survive beyond the termination of this Lease for a period of one year.
Appears in 1 contract
1Indemnification. Tenant shall indemnify, pay on behalf (when necessary), defend and hold harmless the Landlord, and Landlords’ property manager, trustees, board members, officers, directors, controlling entities, contractors, mortgagees, employees, consultants, attorneys, agents, representatives, parent companies, subsidiaries, members, owners, partners, shareholders and affiliates and all of their respective successors and assigns (collectively the “Landlord Indemnified Parties”) from and against all third party claims, costs, liabilities, direct and consequential losses, damages, penalties, recoveries, suits, judgments, executions, direct and consequential (including injunction-related) costs and expenses of whatever nature, including reasonable attorney’s fees and court costs, arising out of (a) injury Subject to persons or damage to property the limitations expressly provided in the Premises or (b) injury to persons or damage to property wherever situated (other than in the Premises) resulting from any act or omission of Tenant or (c) resulting from Xxxxxx’s occupancy or use of the Premises. This indemnity provision also pertains to work or installation done this Agreement, all Indemnitees shall be indemnified and held harmless by the Tenant, its agents, contractors, employees, or invitees on the Premises during the term of this Lease and during the period of time, if any, prior to the commencement of this Lease for which the Tenant has been allowed access to the Premises. Any liability associated with the work or installation performed by contractors includes a resultant mechanic’s liens and monies due Page 8 of 27 LL Initials: T Initials: on account of such work. This provision shall also survive beyond the termination of this Lease for a period of one year. Landlord shall indemnify, pay on behalf (when necessary), defend and hold harmless the Tenant Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, liabilitiesactions, losses and/or damages suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (a “Proceeding”), in which any Indemnitee may be involved, or is threatened to Tenant be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or refraining to act) in such capacity. Notwithstanding the foregoing, an Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, gross negligence or willful misconduct. Any indemnification pursuant to this Section 6.1 shall be made only out of the assets of the Company, it being agreed that the Members shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
(b) Any right to indemnification conferred in this Section 6.1 shall include a limited right to be paid or reimbursed promptly by the Company for any and all reasonable and documented out-of-pocket expenses as they are incurred by an Indemnitee entitled or authorized to be indemnified under this Section 6.1 who was, is or is threatened, to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to such Indemnitee’s ultimate entitlement to indemnification; provided, however, that the payment of such expenses incurred by any such Indemnitee in advance of final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Indemnitee of its good faith belief that he has met the requirements necessary for indemnification under this Section 6.1 and a written undertaking by or on behalf of such Indemnitee to promptly repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Section 6.1 or otherwise.
(c) The indemnification provided by this Section 6.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain insurance, on behalf of the Company, its Affiliates, the Indemnitees and such other Persons as the result Company shall determine, against any liability that may be asserted against, or expense that may be incurred by, such Person in connection with the Company’s or any of its Affiliate’s activities or such Person’s activities on behalf of the Company or any of its Affiliates, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) The provisions of this Section 6.1 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any grossly negligent other Persons.
(f) Any amendment, modification or intentional act by Landlord and/or for repeal of this Section 6.1 or any provision hereof shall be prospective only and shall not in any manner terminate, reduce or impair the breach right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of Landlord’s Representations the Company to indemnify any such Indemnitee under and Warranties contained herein. In in accordance with the event that any action or proceeding is brought against Tenant, and the foregoing indemnity is applicable provisions of this Section 6.1 as in effect immediately prior to such action amendment, modification or proceedingrepeal with respect to claims arising from or relating to matters occurring, then Landlordin whole or in part, upon notice from Tenantprior to such amendment, shall resist and defend modification or repeal, regardless of when such action claims may arise or proceeding. This provision shall also survive beyond the termination of this Lease for a period of one yearbe asserted.
(g) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND SUBJECT TO SECTION 6.1(A), THE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.1 ARE INTENDED BY THE MEMBERS TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, FAULT OR OTHER CONDUCT.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Evolve Transition Infrastructure LP)
1Indemnification. Tenant shall indemnify, pay on behalf (when necessary), defend 4.1. 1The Company agrees to indemnify and hold harmless free and harmless, to the Landlordextent permitted by law, and Landlords’ property managereach Holder of Registrable Securities, trustees, board members, its officers, directors, controlling entitiespartners, contractorsstockholders or members, mortgageesaffiliates, consultants, fiduciaries, managers, employees, consultants, attorneys, agents, representatives, parent companies, subsidiaries, members, owners, partners, shareholders agents and affiliates and all each Person who controls such Holder (within the meaning of their respective successors and assigns the Securities Act) (collectively the “Landlord Indemnified Parties”) from and against all third party actions, causes of action, suits, losses, claims, costs, liabilities, direct and consequential losses, damages, penalties, recoveries, suits, judgments, executions, direct and consequential (including injunction-related) costs liabilities and expenses of whatever nature(including, including without limitation, reasonable attorney’s attorneys’ fees and court costsexpenses) (collectively, arising “Losses”) caused by any of the following (each, a “Violation”): (i) any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus, preliminary Prospectus or Free Writing Prospectus or any amendment thereof or supplement thereto or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company will reimburse such Indemnified Party for any legal and other expenses reasonably incurred in connection with investigating or defending any such Losses, except insofar as any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in filing in reliance upon and in conformity with any information furnished in writing to the Company by such Indemnified Party, relating to such Indemnified Party, expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such Underwriters (awithin the meaning of the Securities Act) injury to persons or damage to property the same extent as provided in the Premises or (b) injury foregoing with respect to persons or damage to property wherever situated (other than in the Premises) resulting from any act or omission of Tenant or (c) resulting from Xxxxxx’s occupancy or use indemnification of the PremisesIndemnified Parties.
4.1. This indemnity provision also pertains 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to work the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or installation done Prospectus and, to the extent permitted by law, shall indemnify the TenantCompany, its agents, contractors, employees, or invitees on directors and officers and agents and each Person who controls the Premises during Company (within the term meaning of this Lease and during the period of time, if any, prior to the commencement of this Lease for which the Tenant has been allowed access to the Premises. Any liability associated with the work or installation performed by contractors includes a resultant mechanic’s liens and monies due Page 8 of 27 LL Initials: T Initials: on account of such work. This provision shall also survive beyond the termination of this Lease for a period of one year. Landlord shall indemnify, pay on behalf (when necessary), defend and hold harmless the Tenant Securities Act) from and against any Losses resulting from (as determined by a final and all claimsappealable judgment, demandsorder or decree of a court of competent jurisdiction) any untrue statement of material fact contained in the Registration Statement, liabilitiesProspectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, losses and/or damages and such Indemnified Party will reimburse the Company and such other indemnitees for any legal and other expenses reasonably incurred in connection with investigating or defending such Losses, but only to Tenant as the result extent that the same arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such filing in reliance upon and in conformity with any grossly negligent information or intentional act affidavit so furnished in writing by Landlord and/or such Indemnified Party, relating to such Indemnified Party, expressly for use therein; provided, however, that the breach obligation to indemnify shall be several, not joint and several, among such Holders of any of Landlord’s Representations and Warranties contained herein. In the event that any action or proceeding is brought against TenantRegistrable Securities, and the foregoing indemnity is applicable liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such action Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company, and the Company shall use its commercially reasonable efforts to ensure that no Underwriter shall require any Holder of Registrable Securities to provide any indemnification other than that provided hereinabove in this Section 4.1.2, and if, despite the Company’s commercially reasonable efforts, an Underwriter requires any Holder of Registrable Securities to provide additional indemnification, such Holder may elect not to participate in such Underwritten Offering (but shall not have any claim against the Company as a result of such election).
4.1. 3Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict or proceedingpotential conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the prior written consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and which settlement includes a statement or admission of fault or culpability on the part of such Indemnified Party or does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.
4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director, partner, stockholder, member or controlling Person of such Indemnified Party and shall survive the transfer of Registrable Securities.
4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Loss referred to herein, then Landlordsuch indemnifying party, upon notice from Tenantin lieu of indemnifying the Indemnified Party, shall resist contribute to the amount paid or payable by such Indemnified Party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party and defend the Indemnified Party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party or parties on the one hand and the Indemnified Party or parties on the other hand in connection with the statements or omissions that resulted in such Loss shall be determined by reference to, among other things, whether any action in question, including any untrue or proceedingalleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder or any director, officer or controlling person thereof under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. This provision The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall also survive beyond be deemed to include, subject to the termination limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceedings. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Lease for subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) as determined by a period final, non-appealable judgment of one yeara court of competent jurisdiction shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
Appears in 1 contract
1Indemnification. Tenant shall 4.1. 1The Company agrees to indemnify, pay on behalf (when necessary)to the extent permitted by law, defend and hold harmless the Landlordeach Holder of Registrable Securities, and Landlords’ property manager, trustees, board members, its officers, directors, controlling entities, contractors, mortgagees, employees, consultants, attorneys, agents, representatives, parent companies, subsidiaries, members, ownersmanagers, partners, shareholders and affiliates directors (if applicable) and all each person who controls such Holder (within the meaning of their respective successors and assigns (collectively the “Landlord Indemnified Parties”Securities Act) from and against all third party losses, claims, costs, liabilities, direct and consequential losses, damages, penalties, recoveries, suits, judgments, executions, direct liabilities and consequential expenses (including injunction-related) costs and expenses of whatever nature, including reasonable attorney’s fees and court costs, arising out of (a) injury to persons or damage to property in the Premises or (b) injury to persons or damage to property wherever situated (other than in the Premisesattorneys’ fees) resulting from any act untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of Tenant a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (cwithin the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from Xxxxxx’s occupancy any untrue statement of material fact contained in the Registration Statement, Prospectus or use preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the Premises. This indemnity provision also pertains to work or installation done by the Tenantstatements therein not misleading, its agents, contractors, employees, or invitees on the Premises during the term of this Lease and during the period of time, if any, prior but only to the commencement extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of this Lease for which the Tenant has been allowed access to the Premises. Any liability associated with the work or installation performed by contractors includes a resultant mechanic’s liens and monies due Page 8 of 27 LL Initials: T Initials: on account of such work. This provision shall also survive beyond the termination of this Lease for a period of one year. Landlord shall indemnify, pay on behalf (when necessary), defend and hold harmless the Tenant from and against any and all claims, demands, liabilities, losses and/or damages to Tenant as the result of any grossly negligent or intentional act by Landlord and/or for the breach of any of Landlord’s Representations and Warranties contained herein. In the event that any action or proceeding is brought against TenantRegistrable Securities, and the foregoing indemnity is applicable liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such action Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
4.1. 3Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in the written opinion of counsel of such indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or proceedingpotential differing interests between such indemnified and indemnifying parties with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the written opinion of counsel of any indemnified party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
4.1. 4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Xxxxxx’s indemnification is unavailable for any reason.
4.1. 5If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then Landlordthe indemnifying party, upon notice from Tenantin lieu of indemnifying the indemnified party, shall resist contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and defend expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. This provision The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall also survive beyond the termination be entitled to contribution pursuant to this Section 4.1.5 from any person who was not guilty of this Lease for a period of one yearsuch fraudulent misrepresentation.
Appears in 1 contract
1Indemnification. Tenant shall shall, at no cost or expense to Landlord other than any de minimis cost or expense, protect, defend, indemnify, pay on behalf (when necessary), defend release and hold harmless each of the Indemnified Parties for, from and against any and all Losses (excluding Losses suffered by an Indemnified Party arising out of the negligence, illegal acts, fraud, or willful misconduct of such Indemnified Party; provided, however, that the term “negligence” shall not include negligence imputed to or status incurred as a matter of law solely by any of the Indemnified Parties by reason of Landlord’s interest in the Premises or Landlord’s failure to act in respect of matters which are or were the obligation of Tenant under this Lease) caused by, and Landlords’ property managerincurred or resulting from Tenant’s operations of any Site, trusteeswhether relating to alteration, board membersmaintenance, or use by Tenant or any Tenant Parties thereon, supervision or otherwise, or from any breach of, default under, or failure to perform, any term or provision of this Lease by Tenant, its officers, directors, controlling entities, contractors, mortgagees, employees, consultantsagents or other persons, attorneys, agents, representatives, parent companies, subsidiaries, members, owners, partners, shareholders and affiliates and all or to which any Indemnified Party is subject because of their respective successors and assigns (collectively the “Landlord Indemnified Parties”) from and against all third party claims, costs, liabilities, direct and consequential losses, damages, penalties, recoveries, suits, judgments, executions, direct and consequential (including injunction-related) costs and expenses of whatever natureLandlord’s interest in any Site, including reasonable attorney’s fees and court costsLosses arising from (i) any accident, arising out of (a) injury to persons or death of any person or loss of or damage to property in occurring in, on or about the Premises or any portion thereof or on the adjoining sidewalks, curbs, parking areas, streets or ways, (bii) injury any use, non-use or condition in, on or about, or possession, alteration, repair, operation, maintenance or management of, the Premises or any portion thereof or on the adjoining sidewalks, curbs, parking areas, streets or ways, (iii) any representation or warranty made herein by Tenant, in any certificate delivered in connection herewith or in any other agreement to persons which Tenant is a party or damage pursuant thereto being false or misleading in any material respect as of the date such representation or warranty was made, (iv) performance of any labor or services or the furnishing of any materials, equipment or other property ordered by Tenant in respect to property wherever situated the Premises or any portion thereof, (other than in v) the Premisesclaims of any invitees, patrons, licensees or subtenants of all or any portion of the Premises or any Person acting through or under Tenant or otherwise acting under or as a consequence of this Lease, (vi) resulting from any act or omission of Tenant or (c) resulting from Xxxxxx’s occupancy or use of the Premises. This indemnity provision also pertains to work or installation done by the Tenantits employees, its agents, contractors, employeeslicensees, subtenants or invitees invitees, (vii) any contest referred to in Section 28.16, and (viii) the sale of liquor, beer or wine on the Premises during or any portion thereof. It is expressly understood and agreed that the term of parties’ obligations under this Lease and during Section 23.1 shall survive the period of time, if any, prior to the commencement of this Lease for which the Tenant has been allowed access to the Premises. Any liability associated with the work expiration or installation performed by contractors includes a resultant mechanic’s liens and monies due Page 8 of 27 LL Initials: T Initials: on account of such work. This provision shall also survive beyond the earlier termination of this Lease with respect to any Site for a period any reason. Except to the extent specified to the contrary in the above, Tenant shall have no obligation to indemnify any of one year. Landlord shall indemnifythe Indemnified Parties to the extent that such Losses arise from negligence, pay on behalf (when necessary)illegal acts, defend and hold harmless the Tenant from and against any and all claimsfraud, demands, liabilities, losses and/or damages to Tenant as the result or willful misconduct of any grossly negligent Indemnified Party; provided, however, that the term “negligence” shall not include negligence imputed to or intentional act status incurred as a matter of law by Landlord and/or for any of the breach of any Indemnified Parties solely by reason of Landlord’s Representations and Warranties contained herein. In interest in the event that any action Premises or proceeding is brought against Tenant, and Landlord’s failure to act in respect of matters which are or were the foregoing indemnity is applicable to such action or proceeding, then Landlord, upon notice from Tenant, shall resist and defend such action or proceeding. This provision shall also survive beyond the termination obligation of Tenant under this Lease for a period of one yearLease.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Gramercy Property Trust Inc.)
1Indemnification. Tenant shall 4.1. 1The Company agrees to indemnify, pay on behalf to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents and each person or entity who controls such Holder (when necessarywithin the meaning of the Securities Act), defend and hold harmless the Landlord, and Landlords’ property manager, trustees, board members, officers, directors, controlling entities, contractors, mortgagees, employees, consultants, attorneys, agents, representatives, parent companies, subsidiaries, members, owners, partners, shareholders and affiliates and all of their respective successors and assigns (collectively the “Landlord Indemnified Parties”) from and against all third party losses, claims, costs, liabilities, direct and consequential losses, damages, penaltiesliabilities and reasonable out-of-pocket expenses (including, recoverieswithout limitation, suitsreasonable outside attorneys’ fees) caused by, judgments, executions, direct and consequential (including injunction-related) costs and expenses of whatever nature, including reasonable attorney’s fees and court costsresulting from, arising out of or based upon any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person or entity who controls such Underwriters (awithin the meaning of the Securities Act) injury to persons or damage to property the same extent as provided in the Premises foregoing with respect to the indemnification of the Holder, subject to customary exclusions.
4.1. 2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (bthe “Holder Information”) injury and, to persons the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each person or damage entity who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to property wherever situated be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (other than or not contained in, in the Premisescase of an omission) resulting any information or affidavit so furnished in writing by or on behalf of such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from any act the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person or omission of Tenant or entity who controls such Underwriters (c) resulting from Xxxxxx’s occupancy or use within the meaning of the PremisesSecurities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
4.1. This indemnity provision also pertains 3Any person or entity entitled to work indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or installation done entity’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the Tenant, indemnified party without its agents, contractors, employeesconsent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or invitees elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the Premises during the term of this Lease and during the period of time, if any, prior to the commencement of this Lease for which the Tenant has been allowed access to the Premises. Any liability associated with the work or installation performed by contractors includes a resultant mechanic’s liens and monies due Page 8 of 27 LL Initials: T Initials: on account part of such workindemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
4.1. This provision 4The indemnification provided for under this Agreement shall also survive beyond the termination remain in full force and effect regardless of this Lease for a period of one year. Landlord shall indemnify, pay any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Xxxxxx’s indemnification is unavailable for any reason.
4.1. 5If the indemnification provided under Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (when necessaryor not made by, in the case of an omission), defend and hold harmless or relates to information supplied by (or not supplied by in the Tenant from and against any and all claimscase of an omission), demands, liabilities, losses and/or damages to Tenant as the result of any grossly negligent such indemnifying party or intentional act by Landlord and/or for the breach of any of Landlord’s Representations and Warranties contained herein. In the event that any action or proceeding is brought against Tenantindemnified party, and the foregoing indemnity is applicable indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such action liability. The amount paid or proceedingpayable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, then Landlordsubject to the limitations set forth in Sections 4.1.1, upon notice from Tenant4.1.2 and 4.1.3 above, shall resist and defend any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such action party in connection with any investigation or proceeding. This provision The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall also survive beyond the termination be entitled to contribution pursuant to this Section 4.1.5 from any person or entity who was not guilty of this Lease for a period of one yearsuch fraudulent misrepresentation.
Appears in 1 contract
Samples: Registration Rights Agreement (Embark Technology, Inc.)
