Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify and hold harmless on an after-Tax basis the Lender, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof).
Appears in 7 contracts
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify and hold harmless on an after-Tax basis the defend Administrative Agent, Collateral Agent and each Lender, and each Related Party of any of the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliatesforegoing Persons (each such Person being called an “Indemnitee”) against, and their respective directorshold each Indemnitee harmless from, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the fees, expenses charges and disbursements (of any counsel for any Indemnitee, including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of in enforcing the foregoing being collectively called indemnification (collectively, “Indemnified AmountsLosses”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery and the other Loan Documents, or any agreement or instrument contemplated hereby, the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby or thereby, and (ii) any Loan or the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements Losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither The foregoing indemnity set forth in this Section 11.03(b) shall not apply (i) with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim and (ii) to any Losses which are the Borrower nor any Indemnitee shall have any subject of the Environmental Indemnity Agreement, it being the intention of the parties hereto that Borrower’s liability for any special, indirect, consequential or punitive damages relating to environmental matters be governed exclusively by the Environmental Indemnity Agreement and not by this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Agreement.
Appears in 4 contracts
Samples: Loan and Security Agreement (Varian Medical Systems Inc), Loan and Security Agreement (Varian Medical Systems Inc), Loan and Security Agreement (Varian Medical Systems Inc)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderAdministrative Agent, the Servicer, the Lenders, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses disbursements awarded against or incurred by any of one law firm plus them arising out of or relating to any local counsel deemed appropriate Transaction Document or the transactions contemplated hereby or thereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by such law firm) the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document (all of the foregoing foregoing, subject to the following exclusion, being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), includingexcluding, without limitation however, any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or amounts payable to an Indemnified Party (iia) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party, (b) resulting from the performance of the Collateral Obligations or (c) on account of Excluded Taxes or Indemnified Taxes payable pursuant to Section 4.3. Neither Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable fees and expenses of counsel and reasonable expenses of litigation. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, the Borrower nor will be obligated to pay any Indemnitee Indemnified Amount on any given day only to the extent there are amounts available therefor pursuant to Section 8.3. Any amounts subject to the indemnification provisions of this Section 16.1 shall have any be paid by the Borrower to the applicable Indemnified Party (subject to Section 8.3) on the Distribution Date following such Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses. In no event shall the Borrower be liable for any special, indirect, punitive or consequential loss or punitive damages relating damage of any kind whatsoever (including but not limited to this Agreement lost profits), even if the Borrower has been advised of the likelihood of such loss or any other Transaction Document or arising out damage and regardless of its activities in connection herewith or therewith (whether before or after the date hereof)form of action.
Appears in 3 contracts
Samples: Amendment No. 1 (HMS Income Fund, Inc.), Loan Financing and Servicing Agreement (HMS Income Fund, Inc.), Loan Financing and Servicing Agreement (HMS Income Fund, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless on an after-Tax basis the Lenderfrom, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitiesactual losses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the fees, expenses charges and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind counsel for any Indemnitee, but excluding indirect, consequential, special or naturepunitive damages (collectively, which may at any time be imposed on“Losses”), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement or any agreement or instrument contemplated hereby, delivery and the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby hereby, (ii) the Loan or thereby, and the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiv) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements Losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither The foregoing indemnity set forth in this Section 9.03(b) shall not apply to any Losses, which are the Borrower nor any Indemnitee shall have any subject of the Environmental Indemnity Agreement, it being the intention of the parties hereto that Borrower’s liability for any special, indirect, consequential or punitive damages relating to environmental matters be governed exclusively by the Environmental Indemnity Agreement and not by this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Agreement.
Appears in 3 contracts
Samples: Term Loan Agreement (Rexford Industrial Realty, Inc.), Term Loan Agreement (Rexford Industrial Realty, Inc.), Term Loan Agreement (Rexford Industrial Realty, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderAdministrative Agent, the Servicer, the Lenders, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses disbursements awarded against or incurred by any of one law firm plus them arising out of or relating to any local counsel deemed appropriate Transaction Document or the transactions contemplated hereby or thereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by such law firm) the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document (all of the foregoing foregoing, subject to the following exclusion, being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), includingexcluding, without limitation however, any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or amounts payable to an Indemnified Party (iia) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party, (b) resulting from the performance of the Collateral Obligations or (c) on account of Excluded Taxes or Indemnified Taxes payable pursuant to Section 4.3. Neither Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable fees and expenses of counsel and reasonable expenses of litigation. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, the Borrower nor will be obligated to pay any Indemnitee Indemnified Amount on any given day only to the extent there are amounts available therefor pursuant to Section 8.3. Any amounts subject to the indemnification provisions of this Section 16.1 shall have any be paid by the Borrower to the applicable Indemnified Party (subject to Section 8.3) on the Distribution Date following such Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)and related costs and expenses.
Appears in 3 contracts
Samples: Amendment No. 6 (HMS Income Fund, Inc.), Amendment No. 5 (HMS Income Fund, Inc.), Amendment No. 3 (HMS Income Fund, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless on an after-Tax basis the Lenderfrom, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the reasonable fees, expenses charges and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by for any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature(collectively, which may at any time be imposed on“Losses”), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement or any agreement or instrument contemplated hereby, delivery and the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby hereby, (ii) any Loan or thereby, and the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiv) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements Losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful wilful misconduct of such Indemnitee. Neither The foregoing indemnity set forth in this Section 10.03(b) shall not apply (i) with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim and (ii) to any Losses, which are the Borrower nor any Indemnitee shall have any subject of the Environmental Indemnity Agreement, it being the intention of the parties hereto that Borrower’s liability for any special, indirect, consequential or punitive damages relating to environmental matters be governed exclusively by the Environmental Indemnity Agreement and not by this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Agreement.
Appears in 3 contracts
Samples: Loan and Security Agreement (Inland Real Estate Income Trust, Inc.), Loan and Security Agreement (Inland Real Estate Income Trust, Inc.), Construction Loan and Security Agreement (Global Growth Trust, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentAgents, the Lenders, the Loan Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower, the Equityholder or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and (b) other than in the case of the Collateral Agent, the Collateral Custodian and the consummation and administration Securities Intermediary, resulting from the performance of the transactions contemplated hereby Collateral Obligations. In no event shall the Borrower be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and thereby (other than regardless of the form of action; provided that this sentence shall in no way limit or vitiate any obligations of any Borrower to indemnify the Indemnified Parties hereunder with respect to legal a claim for special, indirect, punitive or consequential losses or damages whatsoever (including but not limited to lost profits). Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out including enforcement of this Agreement or any other Transaction Document or indemnity. Notwithstanding anything to the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.3(a).
Appears in 3 contracts
Samples: Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.), Loan Financing and Servicing Agreement (MSD Investment Corp.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax tax basis the Lender, the Collateral Facility Agent, the Collateral CustodianLenders, the Securities Intermediary Agents, the Backup Collateral Manager, the Paying Agent and the Agent Custodian and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses including reasonable attorneys’ fees and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom by the Borrower Borrower, including in respect of the funding of any kind Advance or naturein respect of any Transferred Contract, which may at excluding, however, (a) Indemnified Amounts payable to an Indemnified Party to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party or its agent or subcontractor or (b) any time be imposed onExcluded Taxes. Without limiting the foregoing, incurred by but subject to the exclusions above, the Borrower agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or asserted against any such Indemnitee in connection with relating to:
(i) the execution, delivery and performance breach of any representation or warranty made by the parties thereto Borrower (or any of their respective obligations its officers) under or in connection with this Agreement or the other Transaction Documents, any Compliance Certificate or any other Transaction Document and information, report or certificate delivered by the transactions contemplated hereby Borrower pursuant hereto or therebythereto, and the consummation and administration which shall have been false or incorrect in any material respect when made or deemed made;
(ii) any claim arising out of the transactions contemplated hereby and thereby (other than failure by the Borrower to comply in any material way with any Applicable Law with respect to legal fees and disbursements incurred on any Transferred Contract, or prior the nonconformity of any Transferred Contract with any such Applicable Law;
(iii) any claim involving products liability that arises out of or relates to merchandise or services that are the date hereofsubject of any Transferred Contract or strict liability claim in connection with any Transferred Contract;
(iv) any tax or governmental fee or charge (but not including Excluded Taxes), includingall interest and penalties thereon or with respect thereto, without limitation any reasonable and documented all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the Agent in connection with same, which may arise by reason of the making, maintenance or funding, directly or indirectly, of any swap transaction with parties other than the LenderAdvance, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theoryinterest in the Borrower Collateral;
(v) negligence, whether brought by misfeasance or bad faith of the Borrower in the performance of its duties under the Transaction Documents (including any violation of law);
(vi) the commingling of the proceeds of Borrower Collateral at any time with other funds;
(vii) the failure to vest in the Facility Agent a third party or security interest (as defined in the UCC) in the Borrower Collateral, free and clear of any Adverse Claim;
(viii) the failure to vest in the Borrower all right, title and interest in the Contract Payments, Contracts and Related Security purchased by the BorrowerBorrower from the Equityholder pursuant to the Sale Agreement, free and regardless clear of whether any Adverse Claim;
(ix) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or other similar statutory relief applicable to an Obligor) of the Obligor to the payment of any Contract Payment (including a defense based on such Indemnitee is designated Contract Payment or the related Contract not being a party theretolegal, relating valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim related to such Contract Payment;
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Transferred Contract to the extent contemplated by this Agreement;
(xi) any action or omission by the Borrower reducing or impairing the rights of the Secured Parties with respect to any Contract Payments or the value of any Contract Payments, except in accordance with the Credit and Collection Policy and as permitted by this Agreement;
(xii) any failure of the Borrower to give reasonably equivalent value to TPVG in consideration of the sale by TPVG to the Borrower of any Contract Payments or Contracts, or any attempt by any Person to void any such sale under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code; or
(xiii) any investigation, litigation or proceeding related to or arising out from this Agreement, the transactions contemplated hereby, the use of the proceeds of the Advances, the ownership of any Contract Payment or Contract or any other investigation, litigation or proceeding relating thereto in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby. Indemnification under this Section 17.1 shall survive the termination of this Agreement and the resignation or removal of any other Transaction Document or the transactions contemplated hereby Indemnified Party and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use shall include reasonable fees and expenses of proceeds counsel and expenses of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)litigation.
Appears in 2 contracts
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.), Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Servicer, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilitiesdamages (including punitive damages but excluding consequential, obligationsspecial, exemplary and indirect damages and lost profits), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee Transaction Document or the transactions contemplated hereby or thereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower in any Transaction Document or in any certificate or other written material delivered by any third party of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith, fraud, criminal conduct, reckless disregard or by willful misconduct on the Borrower part of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Notwithstanding anything to the contrary in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document Document, the Servicer agrees that the all amounts owing to it under this Section 16.1 shall be subordinate and junior to the amounts owing to the Lenders, the Agents, the Collateral Agent, the Collateral Custodian and the transactions contemplated hereby Facility Agent under this Section 16.1 in all respects. In the event the Borrower is subject to an Insolvency Event, any claim that the Servicer has against the Borrower shall, notwithstanding anything to the contrary herein and notwithstanding any objection to, or therebyrescission of, such filing, be fully subordinate in right of payment to any claim of the Facility Agent, the Agents, the Collateral Agent, the Collateral Custodian and any Lender. The foregoing sentence shall constitute a “subordination agreement” within the meaning of Section 510(a) of the Bankruptcy Code. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the consummation resignation or removal of any Indemnified Party and administration of the transactions contemplated hereby shall include reasonable and thereby (other than with respect to legal documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of the Agent in connection litigation. This Section 16.1 shall not apply with any swap transaction with parties respect to Taxes other than the Lenderany Taxes that represent losses, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted etc. arising from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)non-Tax claim.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Services Provider in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Indemnified Amounts shall not include any Taxes or Increased Costs, other than any Taxes that represent Indemnified Amounts arising from any non-Tax claim. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the consummation resignation or removal of any Indemnified Party and administration of the transactions contemplated hereby shall include reasonable and thereby (other than with respect to legal documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. Notwithstanding anything to the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.3(a).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Owl Rock Capital Corp), Loan Financing and Servicing Agreement (Owl Rock Capital Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Note Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or thereby or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of any Advance or any breach of any representation, as warranty or covenant of the Borrower or the Investment Manager in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Neither This Section 16.1 shall not apply to Taxes, but shall be subject to Section 16.4. Indemnification under this Section 16.1 shall survive the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to termination of this Agreement and the resignation or removal of any other Transaction Document or arising out Indemnified Party and shall include reasonable fees and expenses of its activities in connection herewith or therewith (whether before or after the date hereof)counsel and expenses of litigation.
Appears in 2 contracts
Samples: Loan Agreement (FS KKR Capital Corp), Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Servicer, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and (b) other than in the case of the Collateral Agent, the Collateral Custodian and the consummation and administration Securities Intermediary, resulting from the performance of the transactions contemplated hereby Collateral Obligations. Indemnification under this Section 16.1 shall survive the termination of this Agreement and thereby (other than with respect to legal the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. Notwithstanding anything to the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.3(a).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.), Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the The Borrower shall indemnify and hold harmless on an after-Tax basis the LenderLenders, the Collateral Agent, the Collateral Administrator, the Document Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all but limited, in the case of legal fees and expenses, to the reasonable and documented legal fees and expenses of one law firm for the Agent and Lenders, taken as a whole, and one law firm for the Collateral Agent, the Collateral Administrator and the Document Custodian, taken as a whole, plus any local counsel deemed appropriate by any such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or therebythereby (including the enforcement of this Section 16.1), and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such any Indemnitee. Neither the Borrower nor any Indemnitee This Section 16.1 shall have any liability for any specialnot apply to Taxes (other than Taxes that are damages, indirectlosses, consequential or punitive damages relating to this Agreement or any other Transaction Document or claims and liabilities arising out of its activities in connection herewith or therewith (whether before or after the date hereofwith a non-Tax claim).
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Antares Strategic Credit Fund), Loan and Servicing Agreement (Antares Strategic Credit Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Securities Intermediary, the Agents, the Lenders, the Servicer, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, and the consummation and administration including in respect of the transactions contemplated hereby funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction in a final and thereby non-appealable judgment to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party, (b) resulting from the performance of the Collateral Obligations, (c) related to any loss in value of any Permitted Investment and (d) in respect of Taxes (other than Taxes that represent losses or damages arising from a non-Tax claim), in each case, on the Distribution Date immediately succeeding receipt of written request by the applicable Indemnified Party. Notwithstanding anything herein to the contrary, in no event shall the Borrower be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that, this sentence shall in no way limit or vitiate any obligations of the Borrower to indemnify an Indemnified Party hereunder with respect to legal any claims brought by third parties for special, indirect, consequential, remote, speculative or punitive damages whatsoever. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out including enforcement of this Agreement or any other Transaction Document or indemnity. Notwithstanding anything to the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.3(a).
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (Golub Capital Direct Lending Corp), Loan Financing and Servicing Agreement (Golub Capital BDC 4, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Borrower hereby agrees to indemnify Lender (and for purposes of this Section 9.3, Lender shall include its officers and directors) and each Person may have hereunder who controls the Lender within the meaning of Section 15 of the Securities Act or under Applicable LawSection 20 of the Exchange Act (collectively, the Borrower “Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.3, Issuer shall indemnify include its officers, director and hold harmless on an after-Tax basis each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Secondary Market Transaction, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (collectively, the “Liabilities”) to which Lender, the Collateral AgentLender Group, the Collateral CustodianIssuer or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, (i) any untrue statement of any material fact contained in the information provided to Lender by Borrower and Operating Lessee and their agents, counsel and representatives, (ii) the omission or alleged omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information, in light of the circumstances under which they were made, not misleading, or (iii) a breach of the representations and warranties made by Borrower or Operating Lessee in Section 4.8 of this Agreement (Full and Accurate Disclosure). Borrower also agrees to reimburse Lender, the Securities Intermediary and Lender Group, the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively Issuer and/or the “Indemnitees”) from and against Underwriter Group for any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, legal or other expenses and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) reasonably incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Lender, the Borrower of any kind or natureLender Group, which may at any time be imposed on, incurred by or asserted against any such Indemnitee the Issuer and/or the Underwriter Group in connection with (i) investigating or defending the execution, delivery and performance by the parties thereto of their respective obligations Liabilities. Borrower’s liability under this Agreement paragraph will be limited to Liabilities that arise out of, or any other Transaction Document and the transactions contemplated hereby are based upon, an untrue statement or therebyomission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of Borrower or Operating Lessee in connection with the consummation and administration preparation of the transactions contemplated hereby Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and thereby (other than Operating Lessee, operating statements and rent rolls with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent Property. This indemnification provision will be in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as addition to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the liability which Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)may otherwise have.
Appears in 2 contracts
Samples: Project Loan Agreement (Hersha Hospitality Trust), Term Loan Agreement (Hersha Hospitality Trust)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderAdministrative Agent, the Agents, the Lenders, the Note Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or thereby or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of any Advance or any breach of any representation, as warranty or covenant of the Borrower or the Investment Manager in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Neither This Section 16.1 shall not apply to Taxes, but shall be subject to Section 16.4. Indemnification under this Section 16.1 shall survive the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to termination of this Agreement and the resignation or removal of any other Transaction Document or arising out Indemnified Party and shall include reasonable fees and expenses of its activities in connection herewith or therewith (whether before or after the date hereof)counsel and expenses of litigation.
Appears in 2 contracts
Samples: Loan Financing and Servicing Agreement (FS Investment Corp III), Loan Financing and Servicing Agreement (FS Investment Corp III)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentLenders, the Servicer, the Loan Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against any Indemnitee by any third party in connection with, or by the Borrower reason of any kind one or naturemore of the following: (i) preparation for a defense of any investigation, which may at any time be imposed onlitigation or proceeding arising out of, incurred by related to or asserted against any such Indemnitee in connection with (i) the executionthis Agreement, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and Document, any Underlying Instrument or any of the transactions contemplated hereby or thereby; (ii) any breach or alleged breach of any representation, and warranty or covenant by the consummation and administration Borrower, the Equityholder or the Servicer contained in any Transaction Document; (iii) any representation or warranty made or deemed made by the Borrower, the Equityholder or the Servicer contained in any Transaction Document or in any certificate, statement or report delivered in connection therewith is false or incorrect; (iv) any failure by the Borrower, the Equityholder or the Servicer to comply with any Applicable Law or contractual obligation binding upon it; (v) any failure to vest, or delay in vesting, in the Collateral Agent (for the benefit of the transactions contemplated hereby Secured Parties) a perfected security interest in all of the Collateral free and thereby clear of all Liens (other than Permitted Liens); (vi) any action or omission, not expressly authorized by the Transaction Documents, by the Borrower or any Affiliate of the Borrower which has the effect of impairing the validity or enforceability of the Collateral or the rights of the Collateral Agent or the other Secured Parties with respect thereto; (vii) the failure to file, or any delay in filing, financing statements, continuation statements or the equivalent thereof in any foreign jurisdiction or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Law with respect to legal any Collateral, whether at the time of any Advance or at any subsequent time; (viii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of an Obligor) of an Obligor to the payment with respect to any Collateral (including a defense based on any Collateral Obligation (or the Underlying Instruments evidencing such Collateral Obligation) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms, except to the extent such unenforceability is due to the bankruptcy of such Obligor), or any other claim resulting from any related property securing such Collateral Obligation; (ix) the commingling of Collections on the Collateral at any time with other funds; (x) any failure by the Borrower to give reasonably equivalent value to the applicable seller, in consideration for the transfer by such seller to the Borrower of any item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including any provision of the Bankruptcy Code; (xi) the failure of the Borrower, the Servicer or any of their respective agents or representatives to remit to the Collection Account, within two (2) Business Day of receipt, Collections on the Collateral Obligations remitted to the Borrower, the Servicer or any such agent or representative as provided in this Agreement; and (xii) any Event of Default; in each case excluding any Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and (b) resulting from the performance of the Collateral Obligations. This Section 16.1 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. In the event that the Borrower makes any payment pursuant to this Section 16.1 and the Indemnified Party subsequently receives the benefit of any payment from a third party, such Indemnified Party shall return the amount of such payment to the Borrower. Notwithstanding anything to the contrary herein, in no event shall the Borrower be liable to an Indemnified Party for any special, indirect, consequential, remote, speculative or punitive damages (as opposed to direct or actual damages), even if the Borrower or the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action, and each Indemnified Party hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate any obligations of the Borrower to indemnify an Indemnified Party hereunder with respect to any claims brought by third parties for special, indirect, consequential, remote, speculative or punitive damages whatsoever. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. For the Agent in connection with any swap transaction with parties other than avoidance of doubt, notwithstanding anything to the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Section 8.3.
Appears in 1 contract
Samples: Loan Financing and Sale Agreement (AB Private Credit Investors Corp)
Borrower Indemnity. Without limiting Borrowers shall indemnify Administrative Agent, and each Related Party of any other rights which any of the foregoing Persons (each such Person may have hereunder or under Applicable Lawbeing called an “Indemnitee”) against, the Borrower shall indemnify and hold each Indemnitee harmless on an after-Tax basis the Lenderfrom, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the fees, expenses charges and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by for any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature(collectively, which may at any time be imposed on“Losses”), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement or any agreement or instrument contemplated hereby, delivery and the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby hereby, (ii) any Loan or thereby, and the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiv) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements Losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither The foregoing indemnity set forth in this Section 10.03(b) shall not apply (i) with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim and (ii) to any Losses, which are the Borrower nor any Indemnitee shall have any subject of the Environmental Indemnity Agreement, it being the intention of the parties hereto that Borrower’s liability for any special, indirect, consequential or punitive damages relating to environmental matters be governed exclusively by the Environmental Indemnity Agreement and not by this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Agreement.
Appears in 1 contract
Samples: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify and hold harmless on an after-Tax basis the LenderLenders, the Collateral Agent, the Collateral CustodianAdministrator, the Securities Intermediary Intermediary, the Document Custodian and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all but limited, in the case of legal fees and expenses, to the reasonable and documented legal fees and expenses of one law firm for the Agent and the Lenders, taken as a whole, and one law firm for the Collateral Agent, the Collateral Administrator and the Document Custodian, taken as a whole, plus any one local counsel for each applicable jurisdiction deemed reasonably appropriate or necessary by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the LenderLender and including the costs and expenses of enforcing this section, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the AgentIndemnitee’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 16.1 shall not apply to Taxes (other than Taxes that are damages, losses, claims and liabilities arising in connection with a non-Tax claim). Neither the Borrower Borrower, the Servicer nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof); provided that the foregoing shall not limit the indemnification obligations of the Borrower to any Indemnitee pursuant to this Section 16.1 based upon any third-party claims relating thereto.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Ares Strategic Income Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify and hold harmless on an after-Tax basis the LenderLenders, the Collateral Agent, the Collateral CustodianAdministrator, the Securities Intermediary Intermediary, the Document Custodian and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all but limited, in the case of legal fees and expenses, to the reasonable and documented legal fees and expenses of one law firm for the Agent and the Lenders, taken as a whole, and one primary external counsel (plus any one local counsel deemed appropriate by such law firmin each relevant jurisdiction) for the Collateral Agent, the Collateral Administrator and the Document Custodian, taken as a whole (all of the foregoing being collectively called “Indemnified Amounts”) ), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the LenderLender and including the costs and expenses of enforcing this section, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened brought, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the AgentIndemnitee’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans Loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither This Section 16.1 shall not apply to Taxes (other than Taxes that are damages, losses, claims and liabilities arising in connection with a non-Tax claim). The Borrower agrees to indemnify and hold harmless the Borrower nor Agent and the Lenders from and against any Indemnitee shall have loss incurred by any liability of them as a result of any judgment or order being given or made for any special, indirect, consequential an amount due under or punitive damages relating to in connection with this Agreement or any other Transaction Document and such judgment or arising out order being paid or payable in a currency other than the applicable agreed currency (the “Judgment Currency”) as a result of its activities any variation as between (i) the rate of exchange at which the applicable non-Dollar Eligible Currency amount is converted into the Judgment Currency for the purpose of such judgment or order; and (ii) the rate of exchange at which the relevant indemnified party is able to purchase the applicable non-Dollar Eligible Currency with the amount of the Judgment Currency actually received by such Person. The foregoing indemnity shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premia and costs of exchange payable in connection herewith with the purchase of, or therewith (whether before or after conversion of, the date hereof)relevant currency.
Appears in 1 contract
Samples: Loan and Servicing Agreement (AGL Private Credit Income Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax tax basis the Lender, the Collateral Administrative Agent, the Collateral CustodianLenders, the Securities Intermediary Agents, the Backup Collateral Manager, the Paying Agent and the Agent Custodian and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses including reasonable attorneys’ fees and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom by the Borrower Borrower, including in respect of the funding of any kind Advance or naturein respect of any Transferred Contract, which may at excluding, however, (a) Indemnified Amounts payable to an Indemnified Party to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any time be imposed onIndemnified Party or its agent or subcontractor or (b) any Excluded Taxes. Without limiting the foregoing, incurred by but subject to the exclusions above, the Borrower agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or asserted against any such Indemnitee in connection with relating to:
(i) the execution, delivery and performance breach of any representation or warranty made by the parties thereto Borrower (or any of their respective obligations its officers) under or in connection with this Agreement or the other Transaction Documents, any Compliance Certificate or any other Transaction Document and information, report or certificate delivered by the transactions contemplated hereby Borrower pursuant hereto or therebythereto, and the consummation and administration which shall have been false or incorrect in any material respect when made or deemed made;
(ii) any claim arising out of the transactions contemplated hereby and thereby (other than failure by the Borrower to comply in any material way with any Applicable Law with respect to legal fees and disbursements incurred on any Transferred Contract, or prior the nonconformity of any Transferred Contract with any such Applicable Law;
(iii) any claim involving products liability that arises out of or relates to merchandise or services that are the date hereofsubject of any Transferred Contract or strict liability claim in connection with any Transferred Contract;
(iv) any tax or governmental fee or charge (but not including Excluded Taxes), includingall interest and penalties thereon or with respect thereto, without limitation any reasonable and documented all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the Agent in connection with same, which may arise by reason of the making, maintenance or funding, directly or indirectly, of any swap transaction with parties other than the LenderAdvance, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theoryinterest in the Borrower Collateral;
(v) negligence, whether brought by misfeasance or bad faith of the Borrower in the performance of its duties under the Transaction Documents (including any violation of law);
(vi) the commingling of the proceeds of Borrower Collateral at any time with other funds;
(vii) the failure to vest in the Administrative Agent a third party or security interest (as defined in the UCC) in the Borrower Collateral, free and clear of any Adverse Claim;
(viii) the failure to vest in the Borrower all right, title and interest in the Contract Payments, Contracts and Related Security purchased by the BorrowerBorrower from the Equityholder pursuant to the Sale Agreement, free and regardless clear of whether any Adverse Claim;
(ix) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or other similar statutory relief applicable to an Obligor) of the Obligor to the payment of any Contract Payment (including a defense based on such Indemnitee is designated Contract Payment or the related Contract not being a party theretolegal, relating valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim related to such Contract Payment;
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Transferred Contract to the extent contemplated by this Agreement;
(xi) any action or omission by the Borrower reducing or impairing the rights of the Secured Parties with respect to any Contract Payments or the value of any Contract Payments, except in accordance with the Credit and Collection Policy and as permitted by this Agreement;
(xii) any failure of the Borrower to give reasonably equivalent value to TPVG in consideration of the sale by TPVG to the Borrower of any Contract Payments or Contracts, or any attempt by any Person to void any such sale under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code; or
(xiii) any investigation, litigation or proceeding related to or arising out from this Agreement, the transactions contemplated hereby, the use of the proceeds of the Advances, the ownership of any Contract Payment or Contract or any other investigation, litigation or proceeding relating thereto in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby. Indemnification under this Section 17.1 shall survive the termination of this Agreement and the resignation or removal of any other Transaction Document or the transactions contemplated hereby Indemnified Party and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use shall include reasonable fees and expenses of proceeds counsel and expenses of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)litigation.
Appears in 1 contract
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Borrower Indemnity. Without limiting any other rights which any such (a) Borrower hereby agrees to indemnify Basis, including its officers, directors, Affiliates and each Person may have hereunder who controls Basis within the meaning of Section 15 of the Securities Act or under Applicable LawSection 20 of the Exchange Act (collectively, the Borrower shall indemnify and hold harmless on an after-Tax basis the Lender“Basis Group”), the Collateral Agentissuer of the Securities (the “Issuer” and for purposes of this Section 9.3, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Secondary Market Transaction, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “IndemniteesUnderwriter Group”) from and against for any and all liabilities, obligations, losses, damages, penalties, claims, demandsdamages or liabilities (collectively, actionsthe “Liabilities”) to which Basis, judgmentsthe Basis Group, suitsthe Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of, costsor are based upon, expenses (i) any untrue statement or alleged untrue statement of any material fact contained in the information provided to Basis by Borrower and disbursements its agents, counsel and representatives, (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by ii) the omission or alleged omission to state therein a material fact required to be stated in such law firm) (all information or necessary in order to make the statements in such information, in light of the foregoing being collectively called “Indemnified Amounts”circumstances under which they were made, not misleading, or (iii) a breach of the representations and warranties made by Borrower in Section 4.8 of this Agreement (Full and Accurate Disclosure). Borrower also agrees to reimburse Basis, the Basis Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Basis, the Borrower of any kind or natureBasis Group, which may at any time be imposed on, incurred by or asserted against any such Indemnitee the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities. Borrower’s liability under this paragraph will be limited to Liabilities that arise out of, or are based upon, an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Basis by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property. This indemnification provision will be in addition to any liability which Borrower may otherwise have.
(b) In connection with any Exchange Act Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to (i) indemnify Basis, the Basis Group, the Issuer and the Underwriter Group for Liabilities to which Basis, the Basis Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Basis by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse Basis, the Basis Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by Basis, the Basis Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(c) Promptly after receipt by an indemnified party under this Section 9.3 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.3, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 9.3, such indemnified party shall pay for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party shall not be liable for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the indemnifying party. Without the prior written consent of Basis (which consent shall not be unreasonably withheld or delayed), no indemnifying party shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless the indemnifying party shall have given Basis reasonable prior written notice thereof and shall have obtained an unconditional release of each indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.3(a) or (b) is for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.3(a) or (b), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(i) the execution, delivery Issuer’s and performance by Borrower’s relative knowledge and access to information concerning the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than matter with respect to legal fees and disbursements incurred on or prior to which the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or claim was asserted; (ii) the opportunity to correct and prevent any actual statement or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or omission; and (iii) any other theory, whether brought equitable considerations appropriate in the circumstances. Basis and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by a third party pro rata or by per capita allocation.
(e) The liabilities and obligations of both Borrower and Basis under this Section 9.3 shall survive the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out termination of this Agreement or any other Transaction Document or and the transactions contemplated hereby satisfaction and thereby, discharge of the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Debt.
Appears in 1 contract
Samples: Mezzanine Loan Agreement
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax tax basis the Lender, the Collateral Facility Agent, the Collateral CustodianLenders, the Securities Intermediary Backup Collateral Manager (in its capacity as Backup Collateral Manager or successor Collateral Manager), the Paying Agent, the Collection Account Bank and the Agent Custodian and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses including reasonable attorneys’ fees and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom by the Borrower Borrower, including in respect of the funding of any kind Advance or naturein respect of any Transferred Contract, which may at excluding, however, (a) Indemnified Amounts payable to an Indemnified Party to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party or its agent or subcontractor or (b) any time be imposed onExcluded Taxes. Without limiting the foregoing, incurred by but subject to the exclusions above, the Borrower agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or asserted against any such Indemnitee in connection with relating to:
(i) the execution, delivery and performance breach of any representation or warranty made by the parties thereto Borrower (or any of their respective obligations its officers) under or in connection with this Agreement or the other Transaction Documents, any Distribution Date Statement or any other Transaction Document and information, report or certificate delivered by the transactions contemplated hereby Borrower pursuant hereto or therebythereto, and the consummation and administration which shall have been false or incorrect in any material respect when made or deemed made;
(ii) any claim arising out of the transactions contemplated hereby and thereby (other than failure by the Borrower to comply in any material way with any Applicable Law with respect to legal fees and disbursements incurred on any Transferred Contract, or prior the nonconformity of any Transferred Contract with any such Applicable Law;
(iii) any claim involving products liability that arises out of or relates to merchandise or services that are the date hereofsubject of any Transferred Contract or strict liability claim in connection with any Transferred Contract;
(iv) any tax or governmental fee or charge (but not including Excluded Taxes), includingall interest and penalties thereon or with respect thereto, without limitation any reasonable and documented all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the Agent in connection with same, which may arise by reason of the making, maintenance or funding, directly or indirectly, of any swap transaction with parties other than the LenderAdvance, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theoryinterest in the Borrower Collateral;
(v) negligence, whether brought by misfeasance or bad faith of the Borrower in the performance of its duties under the Transaction Documents (including any violation of law);
(vi) the commingling of the proceeds of Borrower Collateral at any time with other funds;
(vii) the failure to vest in the Facility Agent a third party or security interest (as defined in the UCC) in the Borrower Collateral, free and clear of any Adverse Claim;
(viii) the failure to vest in the Borrower all right, title and interest in the Contract Payments, Contracts and Related Security purchased by the BorrowerBorrower from the Equityholder pursuant to the Sale Agreement, free and regardless clear of whether any Adverse Claim;
(ix) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or other similar statutory relief applicable to an Obligor) of the Obligor to the payment of any Contract Payment (including a defense based on such Indemnitee is designated Contract Payment or the related Contract not being a party theretolegal, relating valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim related to such Contract Payment;
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Transferred Contract to the extent contemplated by this Agreement;
(xi) any action or omission by the Borrower reducing or impairing the rights of the Secured Parties with respect to any Contract Payments or the value of any Contract Payments, except in accordance with the Credit and Collection Policy and as permitted by this Agreement;
(xii) any failure of the Borrower to give reasonably equivalent value to the Equityholder in consideration of the sale by the Equityholder to the Borrower of any Contract Payments or Contracts, or any attempt by any Person to void any such sale under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code; or
(xiii) any investigation, litigation or proceeding related to or arising out from this Agreement, the transactions contemplated hereby, the use of the proceeds of the Advances, the ownership of any Contract Payment or Contract or any other investigation, litigation or proceeding relating thereto in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby. Indemnification under this Section 17.1 shall survive the termination of this Agreement and the resignation or removal of any other Transaction Document or the transactions contemplated hereby Indemnified Party and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use shall include reasonable fees and expenses of proceeds counsel and expenses of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)litigation.
Appears in 1 contract
Samples: Receivables Financing Agreement (TriplePoint Private Venture Credit Inc.)
Borrower Indemnity. Without limiting any other rights which any such (a) Borrower hereby agrees to indemnify Lender (and for purposes of this Section 9.3, Lender shall include its officers and directors) and each Person may have hereunder who controls the Lender within the meaning of Section 15 of the Securities Act or under Applicable LawSection 20 of the Exchange Act (collectively, the Borrower “Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.3, Issuer shall indemnify include its officers, director and hold harmless on an after-Tax basis each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Secondary Market Transaction, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (collectively, the “Liabilities”) to which Lender, the Collateral AgentLender Group, the Collateral CustodianIssuer or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of any material fact contained in the information provided to Lender by Borrower and its agents, counsel and representatives, (ii) the omission or alleged omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information, in light of the circumstances under which they were made, not misleading, or (iii) a breach of the representations and warranties made by Borrower in Section 4.8 of this Agreement (Full and Accurate Disclosure). Borrower also agrees to reimburse Lender, the Securities Intermediary and Lender Group, the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively Issuer and/or the “Indemnitees”) from and against Underwriter Group for any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, legal or other expenses and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) reasonably incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Lender, the Borrower of any kind or natureLender Group, which may at any time be imposed on, incurred by or asserted against any such Indemnitee the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities. Borrower’s liability under this paragraph will be limited to Liabilities that arise out of, or are based upon, an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property. This indemnification provision will be in addition to any liability which Borrower may otherwise have.
(b) In connection with any Exchange Act Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to (i) indemnify Lender, the Lender Group, the Issuer and the Underwriter Group for Liabilities to which Lender, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse Lender, the Lender Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(c) Promptly after receipt by an indemnified party under this Section 9.3 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.3, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the 88 Xxxxxxxx - Stamford indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 9.3, such indemnified party shall pay for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party shall not be liable for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the indemnifying party. Without the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed), no indemnifying party shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless the indemnifying party shall have given Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.3(a) or (b) is for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.3(a) or (b), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(i) the execution, delivery Issuer’s and performance by Borrower’s relative knowledge and access to information concerning the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than matter with respect to legal fees and disbursements incurred on or prior to which the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or claim was asserted; (ii) the opportunity to correct and prevent any actual statement or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or omission; and (iii) any other theory, whether brought equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by a third party pro rata or by per capita allocation.
(e) The liabilities and obligations of both Borrower and Lender under this Section 9.3 shall survive the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out termination of this Agreement or any other Transaction Document or and the transactions contemplated hereby satisfaction and thereby, discharge of the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Debt.
Appears in 1 contract
Borrower Indemnity. Without limiting any other rights which any such (a) Borrower hereby agrees to indemnify Natixis, including its officers, directors, Affiliates and each Person may have hereunder who controls Natixis within the meaning of Section 15 of the Securities Act or under Applicable LawSection 20 of the Exchange Act (collectively, the Borrower shall indemnify and hold harmless on an after-Tax basis the Lender“Natixis Group”), the Collateral Agentissuer of the Securities (the “Issuer” and for purposes of this Section 9.3, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Secondary Market Transaction, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “IndemniteesUnderwriter Group”) from and against for any and all liabilities, obligations, losses, damages, penalties, claims, demandsdamages or liabilities (collectively, actionsthe “Liabilities”) to which Natixis, judgmentsthe Natixis Group, suitsthe Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of, costsor are based upon, expenses (i) any untrue statement of any material fact contained in the information provided to Natixis by Borrower and disbursements its agents, counsel and representatives, (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by ii) the omission to state therein a material fact required to be stated in such law firm) (all information or necessary in order to make the statements in such information, in light of the foregoing being collectively called “Indemnified Amounts”circumstances under which they were made, not misleading, or (iii) a breach of the representations and warranties made by Borrower in Section 4.8 of this Agreement (Full and Accurate Disclosure). Xxxxxxxx also agrees to reimburse Natixis, the Natixis Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by any Indemnitee or asserted against any Indemnitee by any third party or by Natixis, the Borrower of any kind or natureNatixis Group, which may at any time be imposed on, incurred by or asserted against any such Indemnitee the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities or (iv) the Condominium Documents. Xxxxxxxx’s liability under this paragraph will be limited to Liabilities that arise out of, or are based upon, an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Natixis by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property. This indemnification provision will be in addition to any liability which Borrower may otherwise have.
(b) In connection with any Exchange Act Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to (i) indemnify Natixis, the Natixis Group, the Issuer and the Underwriter Group for Liabilities to which Natixis, the Natixis Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Natixis by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse Natixis, the Natixis Group, the Issuer and/or the Underwriter Group for any legal or other expenses reasonably incurred by Natixis, the Natixis Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(c) Promptly after receipt by an indemnified party under this Section 9.3 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.3, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 9.3, such indemnified party shall pay for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party shall not be liable for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the indemnifying party. Without the prior written consent of Natixis (which consent shall not be unreasonably withheld or delayed), no indemnifying party shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless the indemnifying party shall have given Natixis reasonable prior written notice thereof and shall have obtained an unconditional release of each indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.3(a) or (b) is for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.3(a) or (b), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as
(i) the execution, delivery Issuer’s and performance by Xxxxxxxx’s relative knowledge and access to information concerning the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than matter with respect to legal fees and disbursements incurred on or prior to which the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or claim was asserted; (ii) the opportunity to correct and prevent any actual statement or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or omission; and (iii) any other theory, whether brought equitable considerations appropriate in the circumstances. Natixis and Xxxxxxxx hereby agree that it would not be equitable if the amount of such contribution were determined by a third party pro rata or by per capita allocation.
(e) The liabilities and obligations of both Borrower and Natixis under this Section 9.3 shall survive the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out termination of this Agreement or any other Transaction Document or and the transactions contemplated hereby satisfaction and thereby, discharge of the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Debt.
Appears in 1 contract
Samples: Loan Agreement
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Servicer, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the consummation resignation or removal of any Indemnified Party and administration of the transactions contemplated hereby shall include reasonable and thereby (other than with respect to legal documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. Notwithstanding anything to the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.3(a).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (GOLUB CAPITAL INVESTMENT Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentAgents, the Lenders, the Loan Registrar, the Collateral Custodian, the Securities Intermediary Intermediary, the Collateral Administrator and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party, (b) resulting from the performance of the Collateral Obligations, or (c) except as provided in Section 16.4, on account of Taxes. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the consummation resignation or removal of any Indemnified Party and administration of the transactions contemplated hereby shall include reasonable and thereby (other than with respect to legal documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. For the Agent in connection with any swap transaction with parties other than avoidance of doubt, notwithstanding anything to the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such IndemniteeSection 8.3. Neither In no event shall the Borrower nor any Indemnitee shall have any liability be liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that this sentence shall in no way limit or vitiate any obligations of the Borrower to indemnify the Indemnified Parties hereunder with respect to a claim for special, indirect, punitive or consequential losses or damages relating whatsoever (including but not limited to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereoflost profits).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Stellus Private Credit BDC)
Borrower Indemnity. Without limiting Borrowers shall indemnify Administrative Agent, and each Related Party of any other rights which any of the foregoing Persons (each such Person may have hereunder or under Applicable Lawbeing called an "Indemnitee") against, the Borrower shall indemnify and hold each Indemnitee harmless on an after-Tax basis the Lenderfrom, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the fees, expenses charges and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by for any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature(collectively, which may at any time be imposed on"Losses"), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement or any agreement or instrument contemplated hereby, delivery and the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby hereby, (ii) any Loan or thereby, and the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiv) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements Losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither The foregoing indemnity set forth in this Section 10.03(b) shall not apply (i) with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim and (ii) to any Losses, which are the Borrower nor any Indemnitee shall have any subject of the Environmental Indemnity Agreement, it being the intention of the parties hereto that Borrower's liability for any special, indirect, consequential or punitive damages relating to environmental matters be governed exclusively by the Environmental Indemnity Agreement and not by this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Agreement.
Appears in 1 contract
Samples: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentAgents, the Lenders, the Note Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suitsliabilities, costs, expenses and disbursements (including all including, without limitation, attorney's fees and expenses and the costs of enforcement of this Agreement or any provision hereof), but limited, in the case of legal fees and expenses, to the reasonable and documented legal fees and expenses of one law firm for the Facility Agent and the Lenders, taken as a whole, and one law firm for the Collateral Agent and the Collateral Custodian, taken as a whole, plus any local counsel deemed appropriate by any such law firm) firm (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or thereby or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of any Advance or any breach of any representation, as warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (i) with respect to the Collateral Agent and Collateral Custodian, the gross negligence or willful misconduct on the part of the Collateral Agent or Collateral Custodian, as applicable, and (ii) with respect to any other Indemnified Party, the gross negligence, bad faith or willful misconduct on the part of any such IndemniteeIndemnified Party or (b) resulting from the performance or non-performance of the Collateral Obligations. Neither This Section 16.1 shall not apply to Taxes (other than Taxes that are damages, losses, claims and liabilities arising in connection with a non-Tax claim). USActive 57084911.14 -129- Indemnification under this Section 16.1 shall survive the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to termination of this Agreement and the resignation or removal of any other Transaction Document or arising out Indemnified Party and shall include reasonable fees and expenses of its activities in connection herewith or therewith (whether before or after the date hereof)counsel and expenses of litigation.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Blackstone Private Credit Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentServicer, the Lenders, the Loan Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses disbursements awarded against or incurred by any of one law firm plus them arising out of or relating to any local counsel deemed appropriate Transaction Document or the transactions contemplated hereby or thereby (including the structuring and arranging of such transactions or the enforcement of any provision of any Transaction Document) or the use of proceeds therefrom by such law firm) the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document (all of the foregoing foregoing, subject to the following exclusion, being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), includingexcluding, without limitation however, any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or amounts payable to an Indemnified Party (iia) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party, (b) resulting from the performance of the Collateral Obligations or (c) on account of Excluded Taxes or Indemnified Taxes payable pursuant to Section 4.3. Neither Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable fees and expenses of counsel and reasonable expenses of litigation. Notwithstanding anything to the contrary contained herein, the Borrower nor will be obligated to pay any Indemnitee Indemnified Amount on any given day only to the extent there are amounts available therefor pursuant to Section 8.3. Any amounts subject to the indemnification provisions of this Section 16.1 shall have any be paid by the Borrower to the applicable Indemnified Party (subject to Section 8.3) on the Distribution Date following such Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses. In no event shall the Borrower be liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that this sentence shall in no way limit or vitiate any obligation of the Borrower to indemnify the Indemnified Parties hereunder with respect to a claim made against such Indemnified Party (other than by another Indemnified Party) for special, indirect, punitive or consequential losses or damages relating whatsoever (including, but not limited to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereoflost profits).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Capital Southwest Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentAgents, the Lenders, the Servicer, the Loan Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilitiesdamages (including punitive damages but excluding consequential, obligationsspecial, exemplary and indirect damages and lost profits), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby or thereby (including the structuring and thereby, the Lender’s arranging of such transactions) or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of any Advance or any breach of any representation, as warranty or covenant of the Borrower in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith, fraud, criminal conduct, reckless disregard or willful misconduct on the part of such IndemniteeIndemnified Party and (b) other than in the case of the Collateral Agent, the Collateral Custodian and the Securities Intermediary, resulting from the performance of the Collateral Obligations. Neither Notwithstanding anything to the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to contrary in this Agreement or any other Transaction Document Document, the Servicer agrees that all amounts owing to it under this Section 16.1 shall be subordinate and junior to the amounts owing to the Lenders, the Agents, the Collateral Agent, the Collateral Custodian and the Facility Agent under this Section 16.1 in all respects. In the event the Borrower is subject to an Insolvency Event, any claim that the Servicer has against the Borrower shall, notwithstanding anything to the contrary herein and notwithstanding any objection to, or rescission of, such filing, be fully subordinate in right of payment to any claim of the Facility Agent, the Agents, the Collateral Agent, the Collateral Custodian and any Lender. The foregoing sentence shall constitute a “subordination agreement” within the meaning of Section 510(a) of the Bankruptcy Code. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and out-of-pocket expenses of counsel and reasonable and documented out-of- pocket expenses of litigation. This Section 16.1 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising out from any non-Tax claim. In no event shall the Borrower be liable for special, indirect, or punitive loss or damage of its activities any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that this sentence shall in connection herewith no way limit or therewith (whether before vitiate any obligations of the Borrower to indemnify an Indemnified Party hereunder with respect to any claims brought by third parties for special, indirect, consequential, remote, speculative or after the date hereof)punitive damages whatsoever.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Oaktree Strategic Credit Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify Collateral Administrator and hold harmless on an after-Tax basis the Lender, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective its directors, officers, employees, counselagents, agents and attorneys-in-fact and successors in interest affiliated persons (collectively the “IndemniteesIndemnified Parties”) from against, and against hold each Indemnified Party harmless from, any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any related reasonable and documented out-of-pocket costs expenses (including the reasonable and expenses documented fees, charges and out-of-pocket disbursements of any legal counsel for any Indemnified Party), incurred by any Indemnified Party or asserted against any Indemnified Party by any Person (including Borrower or any other party to the Loan Documents ) other than such Indemnified Party arising out of, in connection with, or as a result of: (A) the execution or delivery of this Agreement, any other agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the Agent in connection with any swap transaction with parties other than transactions contemplated hereby or thereby, the Lender, administration of this Agreement; or (iiB) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other party to the BorrowerLoan Documents, and regardless of whether such Indemnitee any Indemnified Party is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any IndemniteeIndemnified Party, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities or disbursements related expenses: are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement Indemnified Party or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)related party for whose conduct such Indemnified Party is responsible.
Appears in 1 contract
Samples: Collateral Administration Agreement (Barings BDC, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the Lender, the Collateral Facility Agent, the Collateral Agents, the Lenders, the Loan Registrar, the Custodian, the Securities Intermediary Paying Agent and the Agent Collection Account Bank and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby thereby or therebythe use of proceeds therefrom by the Borrower, and the consummation and administration including in respect of the transactions contemplated hereby funding of any Advance or in respect of any Transferred Contract, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and thereby (other than b) resulting from the performance of the Contracts. This Section 16.1 shall not apply with respect to legal Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. Notwithstanding anything to the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.5(a).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (TriplePoint Venture Growth BDC Corp.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax tax basis the Lender, the Collateral Facility Agent, the Collateral CustodianLenders, the Securities Intermediary Agents, the Backup Collateral Manager, the Paying Agent and the Agent Custodian and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses including reasonable attorneys’ fees and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom by the Borrower Borrower, including in respect of the funding of any kind Advance or naturein respect of any Transferred Contract, which may at excluding, however, (a) Indemnified Amounts payable to an Indemnified Party to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of such Indemnified Party or its agent or subcontractor or (b) any time be imposed onExcluded Taxes. Without limiting the foregoing, incurred by but subject to the exclusions above, the Borrower agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or asserted against any such Indemnitee in connection with relating to:
(i) the execution, delivery and performance breach of any representation or warranty made by the parties thereto Borrower (or any of their respective obligations its officers) under or in connection with this Agreement or the other Transaction Documents, any Compliance Certificate or any other Transaction Document and information, report or certificate delivered by the transactions contemplated hereby Borrower pursuant hereto or therebythereto, and the consummation and administration which shall have been false or incorrect in any material respect when made or deemed made;
(ii) any claim arising out of the transactions contemplated hereby and thereby (other than failure by the Borrower to comply in any material way with any Applicable Law with respect to legal fees and disbursements incurred on any Transferred Contract, or prior the nonconformity of any Transferred Contract with any such Applicable Law;
(iii) any claim involving products liability that arises out of or relates to merchandise or services that are the date hereofsubject of any Transferred Contract or strict liability claim in connection with any Transferred Contract;
(iv) any tax or governmental fee or charge (but not including Excluded Taxes), includingall interest and penalties thereon or with respect thereto, without limitation any reasonable and documented all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the Agent in connection with same, which may arise by reason of the making, maintenance or funding, directly or indirectly, of any swap transaction with parties other than the LenderAdvance, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theoryinterest in the Borrower Collateral;
(v) negligence, whether brought by misfeasance or bad faith of the Borrower in the performance of its duties under the Transaction Documents (including any violation of law);
(vi) the commingling of the proceeds of Borrower Collateral at any time with other funds;
(vii) the failure to vest in the Facility Agent a third party or security interest (as defined in the UCC) in the Borrower Collateral, free and clear of any Adverse Claim;
(viii) the failure to vest in the Borrower all right, title and interest in the Contract Payments, Contracts and Related Security purchased by the BorrowerBorrower from the Equityholder pursuant to the Sale Agreement, free and regardless clear of whether any Adverse Claim;
(ix) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or other similar statutory relief applicable to an Obligor) of the Obligor to the payment of any Contract Payment (including a defense based on such Indemnitee is designated Contract Payment or the related Contract not being a party theretolegal, relating valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim related to such Contract Payment;
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Transferred Contract to the extent contemplated by this Agreement; 140
(xi) any action or omission by the Borrower reducing or impairing the rights of the Secured Parties with respect to any Contract Payments or the value of any Contract Payments, except in accordance with the Credit and Collection Policy and as permitted by this Agreement;
(xii) any failure of the Borrower to give reasonably equivalent value to TPVG in consideration of the sale by TPVG to the Borrower of any Contract Payments or Contracts, or any attempt by any Person to void any such sale under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code; or
(xiii) any investigation, litigation or proceeding related to or arising out from this Agreement, the transactions contemplated hereby, the use of the proceeds of the Advances, the ownership of any Contract Payment or Contract or any other investigation, litigation or proceeding relating thereto in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby. Indemnification under this Section 17.1 shall survive the termination of this Agreement and the resignation or removal of any other Transaction Document or the transactions contemplated hereby Indemnified Party and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use shall include reasonable fees and expenses of proceeds counsel and expenses of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)litigation.
Appears in 1 contract
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify Administrative Agent, each Arranger, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless on an after-Tax basis the Lenderfrom, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the fees, expenses charges and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by for any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature(collectively, which may at any time be imposed on“Losses”), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery and any other Loan Document or any agreement or instrument contemplated hereby, the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or thereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby hereby, (ii) any Loan or thereby, and the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiii) any actual or prospective claim, litigation, investigation investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by Borrower or threatened any Guarantor or any of their respective equity holders, Affiliates, creditors or any other third person and whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements Losses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither The foregoing indemnity set forth in this Section 11.03(b) shall not apply (i) with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim and (ii) to any Losses, which are the Borrower nor any Indemnitee shall have any subject of the Environmental Indemnity Agreement, it being the intention of the parties hereto that Borrower’s liability for any special, indirect, consequential or punitive damages relating to environmental matters be governed exclusively by the Environmental Indemnity Agreement and not by this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Agreement.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Cottonwood Communities, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall indemnify Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless on an after-Tax basis the Lenderfrom, the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related expenses, costsincluding the fees, expenses charges and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by for any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature(collectively, which may at any time be imposed on“Losses”), incurred by or asserted against any such Indemnitee arising out of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement or any agreement or instrument contemplated hereby, delivery and the performance by the parties thereto hereto of their respective obligations under this Agreement hereunder or the consummation of the Transactions or any other Transaction Document and the transactions contemplated hereby hereby, (ii) any Loan or thereby, and the consummation and administration use of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lenderproceeds therefrom, or (iiiii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, theory and regardless of whether such any Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have Losses resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any specialBORROWER SHALL INDEMNIFY THE INDEMNITEES PURSUANT TO THIS SECTION REGARDLESS OF WHETHER THE ACT, indirectOMISSION, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith FACTS, CIRCUMSTANCES OR CONDITIONS GIVING RISE TO SUCH INDEMNIFICATION WERE CAUSED IN WHOLE OR IN PART BY THE INDEMNITEES’ NEGLIGENCE (whether before or after the date hereofWHETHER BY SIMPLE OR GROSS NEGLIGENCE).
Appears in 1 contract
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the The Borrower shall indemnify and hold harmless on an after-Tax basis the Lender, the Collateral Agent, the Collateral Administrator, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such any Indemnitee. Neither To the Borrower nor any Indemnitee extent not covered in Section 4.3, this Section 16.1 shall have any liability for any specialnot apply to Taxes (other than Taxes that are damages, indirectlosses, consequential or punitive damages relating to this Agreement or any other Transaction Document or claims and liabilities arising out of its activities in connection herewith or therewith (whether before or after the date hereofwith a non-Tax claim).
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party, (b) resulting from the performance of the Collateral Obligations and (c) on account of Excluded Taxes or Indemnified Taxes payable pursuant to Section 4.3. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the consummation resignation or removal of any Indemnified Party and administration of the transactions contemplated hereby shall include reasonable and thereby (other than with respect to legal documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. For the Agent in connection with any swap transaction with parties other than avoidance of doubt, notwithstanding anything to the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that there are amounts available therefor pursuant to Section 8.3(a). Any amounts subject to the indemnification provisions of this Section 16.1 shall be paid by the Borrower to the applicable Indemnified Party (subject to Section 8.3) on the Distribution Date following such liabilitiesPerson’s demand therefor, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined accompanied by a court reasonably detailed description in writing of competent jurisdiction by final the related damage, loss, claim, liability and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemniteerelated costs and expenses. Neither In no event shall the Borrower nor any Indemnitee shall have any liability be liable for any special, indirect, consequential or punitive damages relating loss or damage of any kind whatsoever (including but not limited to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereoflost profits).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Vista Credit Strategic Lending Corp.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Securities Intermediary, the Agents, the Lenders, the Servicer, the Loan Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and or the transactions contemplated hereby or therebythereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction byin a final and nonappealablenon-appealable judgment to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and, (b) other than in the case of the Collateral Agent, the Collateral Custodian and the consummation and administration Securities Intermediary, resulting from the performance of the transactions contemplated hereby Collateral Obligations. , (c) related to any loss in value of any Permitted Investment and thereby (d) in respect of Taxes (other than Taxes that represent losses or damages arising from a non-Tax claim), in each case, on the Distribution Date immediately succeeding receipt of written request by the applicable Indemnified Party. Notwithstanding anything herein to the contrary, in no event shall the Borrower be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that, this sentence shall in no way limit or vitiate any obligations of the Borrower to indemnify an Indemnified Party hereunder with respect to legal any claims brought by third parties for special, indirect, consequential, remote, speculative or punitive damages whatsoever. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out including enforcement of this Agreement or any other Transaction Document or indemnity. Notwithstanding anything to the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereofSection 8.3(a).
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Golub Capital BDC 3, Inc.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the The Borrower shall indemnify and hold harmless on an after-Tax basis the LenderLenders, the Collateral Agent, the Collateral Administrator, the Collateral Custodian, the Securities Intermediary and the Agent and their respective Affiliates, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all but limited, in the case of legal fees and expenses, to the reasonable and documented legal fees and expenses of one law firm for the Agent and Lenders, taken as a whole, and one law firm for the Collateral Agent, the Collateral Administrator and the Collateral Custodian, taken as a whole, plus any local counsel deemed appropriate by any such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or therebythereby (including the enforcement of this Section 16.1), and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such any Indemnitee. Neither the Borrower nor any Indemnitee This Section 16.1 shall have any liability for any specialnot apply to Taxes (other than Taxes that are damages, indirectlosses, consequential or punitive damages relating to this Agreement or any other Transaction Document or claims and liabilities arising out of its activities in connection herewith or therewith (whether before or after the date hereofwith a non-Tax claim).
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blackstone Private Credit Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Note Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or thereby or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of USActive 31637433.35 -133- any Advance or any breach of any representation, as warranty or covenant of the Borrower, the Equityholder or the Investment Manager in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Neither This Section 16.1 shall not apply to Taxes, but shall be subject to Section 16.4. Indemnification under this Section 16.1 shall survive the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to termination of this Agreement and the resignation or removal of any other Transaction Document or arising out Indemnified Party and shall include reasonable fees and expenses of its activities in connection herewith or therewith (whether before or after the date hereof)counsel and expenses of litigation.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentAgents, the Lenders, the Note Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demands, actions, judgments, suitsliabilities and related costs, costs, expenses and disbursements (including all including, without limitation, attorney's fees and expenses and the costs of enforcement of this Agreement or any provision hereof), but limited, in the case of legal fees and expenses, includingto the reasonable and documented legal attorneys’ and accountants’ fees and disbursementslegal fees and expenses of one law firm for the Facility Agent and the Lenders, taken as a whole, and one law firm for the Collateral Agent and the Collateral Custodian, taken as a whole, plus any local counsel deemed appropriate by any such law firm) firm (all of the foregoing being collectively called “Indemnified Amounts”) awarded USActive 31637433.4 -135- against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or thereby or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of any Advance or any breach of any representation, as warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (i) with respect to the Collateral Agent and Collateral Custodian, the gross negligence or willful misconduct on the part of the Collateral Agent or Collateral Custodian, as applicable, and (ii) with respect to any other Indemnified Party, the gross negligence, bad faith or willful misconduct on the part of any such IndemniteeIndemnified Party andor (b) resulting from the performance or non-performance of the Collateral Obligations. Neither This Section 16.1 shall not apply to Taxes (other than Taxes that are damages, losses, claims and liabilities arising in connection with a non-Tax claim). Indemnification under this Section 16.1 shall survive the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to termination of this Agreement and the resignation or removal of any other Transaction Document or arising out Indemnified Party and shall include reasonable fees and expenses of its activities in connection herewith or therewith (whether before or after the date hereof)counsel and expenses of litigation.
Appears in 1 contract
Samples: Omnibus Amendment to Transaction Documents (Blackstone Private Credit Fund)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax tax basis the Lender, the Collateral Administrative Agent, the Collateral CustodianLenders, the Securities Intermediary Agents, the Paying Agent and the Agent Custodian and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses including reasonable attorneys’ fees and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against relating to any Indemnitee by any third party Transaction Document or the transactions contemplated thereby or the use of proceeds therefrom by the Borrower Borrower, including in respect of the funding of any kind Advance or naturein respect of any Transferred Contract, which may at excluding, however, (a) Indemnified Amounts payable to an Indemnified Party to the extent determined by a court of competent jurisdiction to have resulted from gross negligence or willful misconduct on the part of any time be imposed onIndemnified Party or its agent or subcontractor or (b) any Excluded Taxes. Without limiting the foregoing, incurred by but subject to the exclusions above, the Borrower agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or asserted against any such Indemnitee in connection with relating to:
(i) the execution, delivery and performance breach of any representation or warranty made by the parties thereto Borrower (or any of their respective obligations its officers) under or in connection with this Agreement or the other Transaction Documents, any Compliance Certificate or any other Transaction Document and information, report or certificate delivered by the transactions contemplated hereby Borrower pursuant hereto or therebythereto, and the consummation and administration which shall have been false or incorrect in any material respect when made or deemed made;
(ii) any claim arising out of the transactions contemplated hereby and thereby (other than failure by the Borrower to comply in any material way with any Applicable Law with respect to legal fees and disbursements incurred on any Transferred Contract, or prior the nonconformity of any Transferred Contract with any such Applicable Law;
(iii) any claim involving products liability that arises out of or relates to merchandise or services that are the date hereofsubject of any Transferred Contract or strict liability claim in connection with any Transferred Contract;
(iv) any tax or governmental fee or charge (but not including Excluded Taxes), includingall interest and penalties thereon or with respect thereto, without limitation any reasonable and documented all out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the Agent in connection with same, which may arise by reason of the making, maintenance or funding, directly or indirectly, of any swap transaction with parties other than the LenderAdvance, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theoryinterest in the Borrower Collateral;
(v) negligence, whether brought by misfeasance or bad faith of the Borrower in the performance of its duties under the Transaction Documents (including any violation of law);
(vi) the commingling of the proceeds of Borrower Collateral at any time with other funds;
(vii) the failure to vest in the Administrative Agent a third party or security interest (as defined in the UCC) in the Borrower Collateral, free and clear of any Adverse Claim;
(viii) the failure to vest in the Borrower all right, title and interest in the Contract Payments, Contracts and Related Security purchased by the BorrowerBorrower from the Equityholder pursuant to the Sale Agreement, free and regardless clear of whether any Adverse Claim;
(ix) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor or other similar statutory relief applicable to an Obligor) of the Obligor to the payment of any Contract Payment (including a defense based on such Indemnitee is designated Contract Payment or the related Contract not being a party theretolegal, relating valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim related to such Contract Payment;
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Transferred Contract to the extent contemplated by this Agreement;
(xi) any action or omission by the Borrower reducing or impairing the rights of the Secured Parties with respect to any Contract Payments or the value of any Contract Payments, except in accordance with the Credit and Collection Policy and as permitted by this Agreement;
(xii) any failure of the Borrower to give reasonably equivalent value to TPVG in consideration of the sale by TPVG to the Borrower of any Contract Payments or Contracts, or any attempt by any Person to void any such sale under statutory provisions or common law or equitable action, including any provision of the Bankruptcy Code; or
(xiii) any investigation, litigation or proceeding related to or arising out from this Agreement, the transactions contemplated hereby, the use of the proceeds of the Advances, the ownership of any Contract Payment or Contract or any other investigation, litigation or proceeding relating thereto in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby. Indemnification under this Section 17.1 shall survive the termination of this Agreement and the resignation or removal of any other Transaction Document or the transactions contemplated hereby Indemnified Party and thereby, the Lender’s or the Agent’s activities in connection herewith or therewith or any actual or proposed use shall include reasonable fees and expenses of proceeds counsel and expenses of loans hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)litigation.
Appears in 1 contract
Samples: Receivables Financing Agreement (TriplePoint Venture Growth BDC Corp.)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Agents, the Lenders, the Note Registrar, the Collateral Agent, Custodian and the Collateral Custodian, the Securities Intermediary and the Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages (including punitive damages), losses, damages, penalties, claims, demandsliabilities and related costs and expenses, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of the Agent in connection with any swap transaction with parties other than the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or them arising out of this Agreement or relating to any other Transaction Document or the transactions contemplated hereby and thereby, the Lender’s or thereby or the Agent’s activities in connection herewith or therewith or any actual or proposed use of proceeds therefrom by the Borrower, including in respect of loans hereunder; provided that such indemnity shall notthe funding of any Advance or any breach of any representation, as warranty or covenant of the Borrower, the Equityholder or the Investment Manager in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any IndemniteeTransaction Document, be available excluding, however, Indemnified Amounts payable to an Indemnified Party (a) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence negligence, bad faith or willful misconduct on the part of such Indemniteeany Indemnified Party and (b) resulting from the performance of the Collateral Obligations. Neither This Section 16.1 shall not apply to Taxes, but shall be subject to Section 16.4. Indemnification under this Section 16.1 shall survive the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to termination of this Agreement and the resignation or removal of any other Transaction Document or arising out Indemnified Party and shall include reasonable fees and expenses of its activities in connection herewith or therewith (whether before or after the date hereof)counsel and expenses of litigation.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (FS KKR Capital Corp)
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify and hold harmless on an after-Tax basis the LenderFacility Agent, the Collateral AgentLenders, the Servicer, the Loan Registrar, the Collateral Custodian, the Securities Intermediary and the Collateral Agent and each of their respective Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, officersshareholders, employeescontrolling persons, counselemployees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) forthwith on demand, from and against any and all liabilities, obligationsdamages, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses liabilities and disbursements (including all related reasonable and documented legal out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any Indemnitee of them arising out of or asserted against any Indemnitee by any third party in connection with, or by the Borrower reason of any kind one or naturemore of the following: (i) preparation for a defense of any investigation, which may at any time be imposed onlitigation or proceeding arising out of, incurred by related to or asserted against any such Indemnitee in connection with (i) the executionthis Agreement, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and Document, any Underlying Instrument or any of the transactions contemplated hereby or thereby; (ii) any breach or alleged breach of any representation, and warranty or covenant by the consummation and administration Borrower, the Equityholder or the Servicer contained in any Transaction Document; (iii) any representation or warranty made or deemed made by the Borrower, the Equityholder or the Servicer contained in any Transaction Document or in any certificate, statement or report delivered in connection therewith is false or incorrect; (iv) any failure by the Borrower, the Equityholder or the Servicer to comply with any Applicable Law or contractual obligation binding upon it; (v) any failure to vest, or delay in vesting, in the Collateral Agent (for the benefit of the transactions contemplated hereby Secured Parties) a perfected security interest in all of the Collateral free and thereby clear of all Liens (other than Permitted Liens); (vi) any action or omission, not expressly authorized by the Transaction Documents, by the Borrower or any Affiliate of the Borrower which has the effect of impairing the validity or enforceability of the Collateral or the rights of the Collateral Agent or the other Secured Parties with respect thereto; (vii) the failure to file, or any delay in filing, financing statements, continuation statements or the equivalent thereof in any foreign jurisdiction or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Law with respect to legal any Collateral, whether at the time of any Advance or at any subsequent time; (viii) any dispute, claim, offset or defense (other than the discharge in bankruptcy of an Obligor) of an Obligor to the payment with respect to any Collateral (including a defense based on any Collateral Obligation (or the Underlying Instruments evidencing such Collateral Obligation) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms, except to the extent such unenforceability is due to the bankruptcy of such Obligor), or any other claim resulting from any related property securing such Collateral Obligation; (ix) the commingling of Collections on the Collateral at any time with other funds; (x) any failure by the Borrower to give reasonably equivalent value to the applicable seller, in consideration for the transfer by such seller to the Borrower of any item of Collateral or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including any provision of the Bankruptcy Code; (xi) the failure of the Borrower, the Servicer or any of their respective agents or representatives to remit to the Collection Account, within two (2) Business Day of receipt, Collections on the Collateral Obligations remitted to the Borrower, the Servicer or any such agent or representative as provided in this Agreement; and (xii) any Event of Default; in each case excluding any Indemnified Amounts payable to an Indemnified Party (a) to the extent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party and (b) resulting from the performance of the Collateral Obligations. This Section 16.1 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. In the event that the Borrower makes any payment pursuant to this Section 16.1 and the Indemnified Party subsequently receives the benefit of any payment from a third party, such Indemnified Party shall return the amount of such payment to the Borrower. Notwithstanding anything to the contrary herein, in no event shall the Borrower be liable to an Indemnified Party for any special, indirect, consequential, remote, speculative or punitive damages (as opposed to direct or actual damages), even if the Borrower or the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action, and each Indemnified Party hereby waives, releases, and agrees not to xxx upon any claim for any such damages, whether or not accrued and whether or not known or suspected; provided that this sentence shall in no way limit or vitiate any obligations of the Borrower to indemnify an Indemnified Party hereunder with respect to any claims brought by third parties for special, indirect, consequential, remote, speculative or punitive damages whatsoever. Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and disbursements incurred on or prior to the date hereof), including, without limitation any out-of-pocket expenses of counsel and reasonable and documented out-of-pocket costs and expenses of litigation. For the Agent in connection with any swap transaction with parties other than avoidance of doubt, notwithstanding anything to the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Section 8.3.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (AB Private Credit Investors Corp)
Borrower Indemnity. Without limiting any other rights which any such (a) Borrower hereby agrees to indemnify Lender (and for purposes of this Section 9.3, Lender shall include its officers and directors) and each Person may have hereunder who controls the Lender within the meaning of Section 15 of the Securities Act or under Applicable LawSection 20 of the Exchange Act (collectively, the Borrower “Lender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.3, Issuer shall indemnify include its officers, director and hold harmless on an after-Tax basis each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Secondary Market Transaction, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages or liabilities (collectively, the “Liabilities”) to which Lender, the Collateral AgentLender Group, the Collateral CustodianIssuer or the Underwriter Group may become subject insofar as the Liabilities arise out of, the Securities Intermediary and the Agent and their respective Affiliatesor are based upon, and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all reasonable and documented legal fees and expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) any untrue statement or alleged untrue statement of any material fact contained in the executionwritten information provided to Lender by Borrower and its agents, delivery counsel and performance representatives, (ii) the omission or alleged omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information, in light of the circumstances under which they were made, not misleading, or (iii) a breach of the representations and warranties made by the parties thereto Borrower in Section 4.8 of their respective obligations under this Agreement or (Full and Accurate Disclosure). Borrower also agrees to reimburse Lender, the Lender Group, the Issuer and/or the Underwriter Group for any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and legal or other expenses of reasonably incurred by Lender, the Agent Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities. Borrower’s liability under this paragraph will be limited to Liabilities that arise out of, or are based upon, an untrue statement or omission made in reliance upon, and in conformity with, written information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property. This indemnification provision will be in addition to any swap transaction liability which Borrower may otherwise have.
(b) In connection with parties any Exchange Act Filing or other than reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to (i) indemnify Lender, the Lender Group, the Issuer and the Underwriter Group for Liabilities to which Lender, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, written information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebyreimburse Lender, the Lender Group, the Issuer and/or the Underwriter Group for any out-of-pocket legal or other expenses reasonably incurred by Lender’s or , the Agent’s activities Lender Group, the Issuer and/or the Underwriter Group in connection herewith with defending or therewith or investigating the Liabilities.
(c) Promptly after receipt by an indemnified party under this Section 9.3 of notice of the commencement of any actual or proposed use action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.3, notify the indemnifying party in writing of proceeds of loans hereunder; provided that such indemnity shall notthe commencement thereof, as but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any Indemnitee, be available indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such liabilitiesindemnified party, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted assume the defense thereof with counsel satisfactory to such indemnified party. After notice from the gross negligence indemnifying party to such indemnified party under this Section 9.3, such indemnified party shall pay for any legal or willful misconduct other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Indemniteeaction on behalf of such indemnified party at the cost of the indemnifying party. Neither The indemnifying party shall not be liable for the Borrower nor any Indemnitee expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the indemnifying party. Without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed), no indemnifying party shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless the indemnifying party shall have given Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each indemnified party hereunder from all liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities such claim, action, suit or proceedings.
(d) In order to provide for just and equitable contribution in connection herewith circumstances in which the indemnity agreement provided for in Section 9.3(a) or therewith (whether before b) is for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or after action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.3(a) or (b), the date hereofindemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered:
(i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(e) The liabilities and obligations of both Borrower and Lender under this Section 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
Appears in 1 contract
Borrower Indemnity. Without limiting any other rights which any such Person may have hereunder or under Applicable Law, the Borrower shall agrees to indemnify the Facility Agent, the Administrative Agent, the Lenders, the Loan Registrar, the Collateral Custodian, the Securities Intermediary and hold harmless the Collateral Agent and each of their Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any of the foregoing (each of the foregoing Persons being individually called an “Indemnified Party”), forthwith on demand, from and against any and all damages (including punitive damages), losses, claims, liabilities and related reasonable and documented out-of-pocket costs and expenses, including reasonable and documented attorneys’ and accountants’ fees and disbursements (all of the foregoing being collectively called “Indemnified Amounts”) awarded against or incurred by any of them arising out of or relating to any Transaction Document or the transactions contemplated hereby or thereby (including the structuring and arranging of such transactions) or the use of proceeds therefrom by the Borrower, including in respect of the funding of any Advance or any breach of any representation, warranty or covenant of the Borrower or the Servicer in any Transaction Document or in any certificate or other written material delivered by any of them pursuant to any Transaction Document, excluding, however, Indemnified Amounts payable to an after-Tax basis Indemnified Party (a) to the Lenderextent determined by a court of competent jurisdiction to have resulted from gross negligence, bad faith or willful misconduct on the part of such Indemnified Party, (b) other than in the case of the Collateral Agent, the Collateral Custodian, the Securities Intermediary and the Agent Administrative Agent, resulting from the performance of the Collateral Obligations or (c) relating to Taxes (other than any Taxes that represent Indemnified Amounts arising from any non-Tax claim). Indemnification under this Section 16.1 shall survive the termination of this Agreement and their respective Affiliates, the resignation or removal of any Indemnified Party and their respective directors, officers, employees, counsel, agents and attorneys-in-fact and successors in interest (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including all shall include reasonable and documented legal fees and out-of-pocket expenses of one law firm plus any local counsel deemed appropriate by such law firm) (all of the foregoing being collectively called “Indemnified Amounts”) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower of any kind or nature, which may at any time be imposed on, incurred by or asserted against any such Indemnitee in connection with (i) the execution, delivery and performance by the parties thereto of their respective obligations under this Agreement or any other Transaction Document and the transactions contemplated hereby or thereby, and the consummation and administration of the transactions contemplated hereby and thereby (other than with respect to legal fees and disbursements incurred on or prior to the date hereof), including, without limitation any reasonable and documented out-of-pocket costs and expenses of litigation (including enforcement of rights to indemnification hereunder). For the Agent in connection with any swap transaction with parties other than avoidance of doubt, notwithstanding anything to the Lender, or (ii) any actual or prospective claim, litigation, investigation or proceeding brought or threatened whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether such Indemnitee is designated a party thereto, relating to or arising out of this Agreement or any other Transaction Document or the transactions contemplated hereby and therebycontrary contained herein, the Lender’s or the Agent’s activities in connection herewith or therewith or Borrower will be obligated to pay any actual or proposed use of proceeds of loans hereunder; provided that such indemnity shall not, as to Indemnified Amount on any Indemnitee, be available given day only to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements there are determined by a court of competent jurisdiction by final and nonappealable judgment amounts available therefor pursuant to have resulted from the gross negligence or willful misconduct of such Indemnitee. Neither the Borrower nor any Indemnitee shall have any liability for any special, indirect, consequential or punitive damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after the date hereof)Section 8.3.
Appears in 1 contract
Samples: Loan Financing and Servicing Agreement (Silver Point Specialty Lending Fund)