Common use of Borrower’s Indemnity Clause in Contracts

Borrower’s Indemnity. Whether or not the transactions contemplated hereby shall be consummated, the Borrower shall pay, indemnify and hold each Lender, the Agent and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable attorney's fees, which may include the allocated charges of internal legal counsel) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Indemnified Person in any way relating to or arising out of this Agreement or any other Loan Document, or the transactions contemplated hereby or thereby, or the use of any Loan proceeds, or any action taken or omitted by any such Indemnified Person under or in connection with any of the foregoing (all of the foregoing, collectively the "Indemnified Liabilities"); provided, that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the negligence or willful misconduct of such Indemnified Person. All amounts owing under this Section 9.06 shall be paid promptly upon demand. At the election of any Indemnified Person, the Borrower shall defend such Indemnified Person in respect of any Indemnified Liabilities using legal counsel reasonably satisfactory to such Indemnified Person at the sole cost and expense of the Borrower.

Borrower’s Indemnity. Whether or not the transactions contemplated hereby Neither Administrative Agent nor any Indemnified Party shall be consummatedliable or responsible for, the and Borrower shall pay, indemnify and hold each Lender, the Agent Agent-Related Person and each of Indemnified Party and their respective officersAffiliates, directors, employeesofficers, counselagents, agents attorneys and attorneys-in-fact employees (eachcollectively, an the "Indemnified PersonIndemnitees") harmless from and against against: (a) any Claims, arising from or relating to (i) any defect in the Project or the Improvements, (ii) the performance or default of Borrower, Borrower's surveyors, architects, engineers, contractors, or any other Person engaged by or on behalf of Borrower, (iii) any failure to construct, complete, protect or insure the Improvements, (iv) the payment of costs of labor, materials, or services supplied for the construction of the Improvements, (v) the protection and preservation of the collateral for the Loan (including those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), (vi) the performance of any obligation of Borrower whatsoever, or (vii) environmental damages; (b) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, charges, out-of-pocket expenses or and disbursements (including reasonable attorney's fees, which may include the allocated charges of internal legal counselattorney fees and costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Indemnified Person Indemnitee in any way relating to or arising out of this Agreement or any other Loan Document, or the transactions contemplated hereby or thereby, or the use of any Loan proceeds, or any action taken or omitted by any such Indemnified Person under or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the foregoing transactions contemplated thereby, (all ii) any Commitment or advance of the Loan, or the Lakeway Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by PlainsCapital Bank to honor a demand for payment under the Lakeway Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of the Lakeway Letter of CONSTRUCTION LOAN AGREEMENT – Page 63 Credit), or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, collectively whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto; (c) any and all claims, demands, actions or causes of action arising out of or relating to the use of Information or other materials obtained through internet, Intralinks or other similar information transmission systems in connection with this Agreement; and (d) any and all liabilities, losses, costs or expenses (including attorney fees and costs) that any Indemnified Party suffers or incurs as a result of the assertion of any foregoing claim, demand, action, cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action, cause of action or proceeding, in all cases, whether or not an Indemnified Party is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (all the foregoing, collectively, the "Indemnified Liabilities"), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNIFIED PARTY'S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; providedprovided that such indemnity shall not, that the Borrower shall have no obligation hereunder as to any Indemnified Person with respect Indemnitee, be available to Indemnified Liabilities arising 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 Indemnified PersonParty. All amounts owing under this Section 9.06 Upon demand by Administrative Agent, Borrower shall be paid promptly upon demand. At diligently defend any Claim which affects the election of Project or is made or commenced against Administrative Agent or any Indemnified Lender, whether alone or together with Borrower or any other Person, all at Borrower's own cost and expense and by counsel to be approved by Administrative Agent in the Borrower shall defend such Indemnified Person in respect exercise of its judgment. In the alternative, at any Indemnified Liabilities using legal time Administrative Agent may elect to conduct its own defense on behalf of itself or any Lender through counsel reasonably satisfactory to such Indemnified Person selected by Administrative Agent and at the sole cost and expense of Borrower. Nothing, including any advance or acceptance of any document or instrument, shall be construed as a representation or warranty, express or implied, to any party by Administrative Agent or Lenders. Inspection shall not constitute an acknowledgment or representation by Administrative Agent, any Lender or the BorrowerConstruction Consultant that there has been or will be compliance with the Plans, the Loan Documents, or applicable laws, Governmental Requirements and restrictive covenants, or that the construction is free from defective materials or workmanship. Inspection, whether or not followed by notice of an Event of Default, shall not constitute a waiver of any Event of Default then existing, or a waiver of Administrative Agent's and Lenders' right thereafter to insist that the Improvements be constructed in accordance with the Plans, the Loan Documents, and all applicable Governmental Requirements. Administrative Agent's failure to inspect shall not constitute a waiver of any of Administrative Agent's or Lenders' rights under the Loan Documents or at law or in equity.

Borrower’s Indemnity. Whether or not the transactions contemplated hereby Neither Administrative Agent nor any Lender shall be consummatedliable or responsible for, the and Borrower shall pay, indemnify and hold each Lender, the Agent Agent-Related Person and each of Lender and their respective officersAffiliates, directors, employeesofficers, counselagents, agents attorneys and attorneys-in-fact employees (eachcollectively, an "Indemnified Person"the “Indemnitees”) harmless from and against against: (a) any claim, action, loss or cost (including attorneys’ fees and costs) arising from or relating to (i) any defect in the Property or the Improvements, (ii) the performance or default of Borrower, Borrower’s surveyors, architects, engineers or contractors, or any other person, (iii) in connection with the protection and preservation of the Loan collateral (including those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (iv) the performance of any obligation of Borrower whatsoever; (b) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, charges, expenses or and disbursements (including reasonable attorney's fees, which may include the allocated charges of internal legal counselattorneys’ fees and costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Indemnified Person Indemnitee in any way relating to or arising out of this or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document, the Environmental Agreement or any other Loan Documentagreement, letter or instrument delivered in connection with the transactions contemplated hereby thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan; or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto; (c) any and all claims, demands, actions or causes of action arising out of or relating to the use of Information (as defined in Section 8.7) or other materials obtained through internet, Intralinks or other similar information transmission systems in connection with this Agreement; and (d) any Loan proceedsand all liabilities, losses, costs or expenses (including reasonable attorneys’ fees and costs) that any Indemnitee suffers or incurs as a result of the assertion of any of the foregoing claims, demands, actions, causes of action or proceedings, or as a result of the preparation of any action taken or omitted by any such Indemnified Person under or defense in connection with any of the foregoing claims, demands, actions, causes of action or proceedings, in all cases, whether or not an Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn (all of the foregoing, collectively collectively, the "“Indemnified Liabilities"”); providedprovided that such indemnity shall not, that the Borrower shall have no obligation hereunder as to any Indemnified Person with respect Indemnitee, be available to Indemnified Liabilities arising 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 non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified PersonIndemnitee. All amounts owing under this Section 9.06 Nothing, including any advance or acceptance of any document or instrument, shall be paid promptly upon demandconstrued as a representation or warranty, express or implied, to any party by Administrative Agent or Lenders. At Inspection shall not constitute an acknowledgment or representation by Administrative Agent or any Lender that there has been or will be compliance with the election Loan Documents, the Environmental Agreement or applicable Laws, governmental requirements or restrictive covenants, or that the construction is free from defective materials or workmanship. Administrative Agent’s failure to inspect shall not constitute a waiver of any Indemnified Person, rights of Administrative Agent or Lenders under the Borrower shall defend such Indemnified Person Loan Documents or the Environmental Agreement or at Law or in respect of any Indemnified Liabilities using legal counsel reasonably satisfactory to such Indemnified Person at the sole cost and expense of the Borrowerequity.

Borrower’s Indemnity. Whether or not the transactions contemplated hereby shall be consummated, the Borrower shall pay, indemnify and hold each Lender, the Agent and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable attorney's fees, which may include fees and the allocated charges of internal legal counsel) of any kind or nature whatsoever which may at with respect to any time investigation, litigation or proceeding (including at any time following repayment of the Loans and the termination, resignation insolvency proceeding or replacement of the Agent or replacement of any Lenderappellate proceeding) be imposed on, incurred by or asserted against any such Indemnified Person in any way relating related to or arising out of this Agreement or any other Loan Document, Document or the transactions contemplated hereby any actual or thereby, or the proposed use of proceeds of the Loans hereunder, whether or not any Loan proceeds, or any action taken or omitted by any such Indemnified Person under or in connection with any of the foregoing is a party thereto (all of the foregoing, collectively the "Indemnified Liabilities"); providedPROVIDED, that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the negligence or willful misconduct of such Indemnified Person; and PROVIDED, FURTHER, without limiting Sections 10.12 or 8.05 hereof, this Section 9.06 shall not be construed to require the Borrower to pay, indemnify, or hold the Indemnified Person harmless for Indemnified Liabilities arising solely in connection with disputes by and among the Agent, the Co-Agents, the Lenders, any assignee of any Lender (including any purchaser of a participation interest in any Loan). All amounts owing under this Section 9.06 shall be paid promptly upon demand. At the election of any Indemnified Person, the Borrower shall defend such Indemnified Person in respect of any Indemnified Liabilities using legal counsel reasonably satisfactory to such Indemnified Person at the sole cost and expense of the Borrower.Section

Borrower’s Indemnity. Whether or not the transactions contemplated hereby shall be consummated, the Borrower shall pay, indemnify and hold each Lender, the Agent Lender and each of their respective its officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable attorney's fees, which may include include, without duplication, the allocated charges of internal legal counsel) of any kind or nature whatsoever which may at with respect to any time investigation, litigation or proceeding (including at any time following repayment of the Loans and the termination, resignation insolvency proceeding or replacement of the Agent or replacement of any Lenderappellate proceeding) be imposed on, incurred by or asserted against any such Indemnified Person in any way relating related to or arising out of this Agreement or any other Loan Document, Document or the transactions contemplated hereby any actual or thereby, or the proposed use of proceeds of the Loans made hereunder, whether or not any Loan proceeds, or any action taken or omitted by any such Indemnified Person under or in connection with any of the foregoing is a party thereto (all of the foregoing, collectively the "Indemnified Liabilities"); provided, that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the negligence or willful misconduct or gross negligence of such Indemnified Person. All amounts owing under this Section 9.06 8.6 shall be paid promptly upon demand. At the election of any Indemnified Person, the Borrower shall defend such Indemnified Person in respect of any Indemnified Liabilities using legal counsel reasonably satisfactory to such Indemnified Person at the sole cost and expense of the Borrower.

Borrower’s Indemnity. Whether or not the transactions contemplated hereby Neither Administrative Agent nor any Lender shall be consummatedliable or responsible for, the and Borrower shall pay, indemnify and hold each Lender, the Agent Agent-Related Person and each of Lender and their respective officersAffiliates, directors, employeesofficers, counselagents, agents attorneys and attorneys-in-fact employees (eachcollectively, an "Indemnified Person"the “Indemnitees”) harmless from and against against: (a) any claim, action, loss or cost (including attorneys’ fees and costs) arising from or relating to (i) in connection with the protection and preservation of the Loan collateral, or (ii) the performance of any obligation of Borrower whatsoever; (b) any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, charges, expenses or and disbursements (including reasonable attorney's fees, which may include the allocated charges of internal legal counselattorneys’ fees and costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Indemnified Person Indemnitee in any way relating to or arising out of this Agreement or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other Loan Documentagreement, letter or instrument delivered in connection with the transactions contemplated hereby thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan; or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto; (c) any and all claims, demands, actions or causes of action arising out of or relating to the use of Information (as defined in Section 8.7) or other materials obtained through internet, Intralinks or other similar information transmission systems in connection with this Agreement; and (d) any Loan proceedsand all liabilities, losses, costs or expenses (including reasonable attorneys’ fees and costs) that any Indemnitee suffers or incurs as a result of the assertion of any of the foregoing claims, demands, actions, causes of action or proceedings, or as a result of the preparation of any action taken or omitted by any such Indemnified Person under or defense in connection with any of the foregoing claims, demands, actions, causes of action or proceedings, in all cases, whether or not an Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn (all of the foregoing, collectively collectively, the "“Indemnified Liabilities"”); providedprovided that such indemnity shall not, that the Borrower shall have no obligation hereunder as to any Indemnified Person with respect Indemnitee, be available to Indemnified Liabilities arising 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 non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified PersonIndemnitee. All amounts owing under this Section 9.06 Nothing, including any advance or acceptance of any document or instrument, shall be paid promptly upon demand. At the election of construed as a representation or warranty, express or implied, to any Indemnified Person, the Borrower shall defend such Indemnified Person in respect of any Indemnified Liabilities using legal counsel reasonably satisfactory to such Indemnified Person at the sole cost and expense of the Borrowerparty by Administrative Agent or Lenders.

Borrower’s Indemnity. Whether or not the transactions contemplated hereby shall be consummated, the Borrower shall pay, indemnify and hold each Lender, the Agent and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable attorney's fees, which may include fees and the allocated charges of internal legal counsel) of any kind or nature whatsoever which may at with respect to any time investigation, litigation or proceeding (including at any time following repayment of the Loans and the termination, resignation insolvency proceeding or replacement of the Agent or replacement of any Lenderappellate proceeding) be imposed on, incurred by or asserted against any such Indemnified Person in any way relating related to or arising out of this Agreement or any other Loan Document, Document or the transactions contemplated hereby any actual or thereby, or the proposed use of proceeds of the Loans hereunder, whether or not any Loan proceeds, or any action taken or omitted by any such Indemnified Person under or in connection with any of the foregoing is a party thereto (all of the foregoing, collectively the "Indemnified Liabilities"); providedPROVIDED, that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the negligence or willful misconduct of such Indemnified Person; and PROVIDED, FURTHER, without limiting Sections 10.12 or 8.05 hereof, this Section 9.06 shall not be construed to require the Borrower to pay, indemnify, or hold the Indemnified Person harmless for Indemnified Liabilities arising solely in connection with disputes by and among the Agent, the Co-Agents, the Lenders, any assignee of any Lender (including any purchaser of a participation interest in any Loan). All amounts owing under this Section 9.06 shall be paid promptly upon demand. At the election of any Indemnified Person, the Borrower shall defend such Indemnified Person in respect of any Indemnified Liabilities using legal counsel reasonably satisfactory to such Indemnified Person at the sole cost and expense of the Borrower.this