Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any Property. Any appraisal, inspection, audit, report or assessment of any Property or the books and records of any Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any Property, or relieve any Borrower or Guarantor of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FOR, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENT, EACH LENDER, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER (COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST: (A) ANY CLAIM, ACTION, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREIN, (II) THE PROTECTION, PRESERVATION, OPERATION, MANAGEMENT, IMPROVEMENT, MAINTENANCE, REPAIR, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A), (II) 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 TRANSACTIONS CONTEMPLATED THEREBY, (III) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever.
Appears in 3 contracts
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Agreement (KBS Real Estate Investment Trust II, Inc.), Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment or discretion (or sole discretion) is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of the Plans, the Budget, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any Propertythe Property or the construction of the Improvements. Administrative Agent’s or Lenders’ acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding reasonable attorney’s fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors, MAINTENANCEthe Construction Consultant, REPAIRor any other person, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiii) any failure to construct, INSURANCE PREMIUMScomplete, AND LEASING COSTS AND BROKER FEESprotect or insure the Improvements, (iv) OR the payment of costs of labor, materials, or services supplied for the construction of the Improvements, (IIIv) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERin 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 (vi) the performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding reasonable attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, LENDERSdelivery, 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 transactions contemplated thereby, (ii) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH any Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Aincluding any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (IIiii) THE EXECUTIONany actual or prospective claim, DELIVERYlitigation, ENFORCEMENTinvestigation or proceeding relating to any of the foregoing, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTwhether based on contract, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYtort 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 6.6) 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 Indemnitee 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 Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. Further, Borrower shall not be obligated to indemnify any of the Indemnitees from matters which relate solely to disputes or disagreements among Lenders and/or Administrative Agent, or any default by any of the Lenders and/or Administrative Agent of any of their respective obligations under this Agreement to Borrower or to each other. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Consultant that there has been or will be compliance with the Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga 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 Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity.
Appears in 3 contracts
Samples: Construction Loan Agreement (Skechers Usa Inc), Construction Loan Agreement (Skechers Usa Inc), Construction Loan Agreement (Skechers Usa Inc)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is expressly required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report or assessment of any the Property or the books and records of any Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FOR, AND BORROWERS BORROWER SHALL INDEMNIFY ADMINISTRATIVE AGENT, EACH LENDER, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER (COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST: (A) ANY CLAIM, ACTION, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIESPROPERTY, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREIN, (II) THE PROTECTION, PRESERVATION, OPERATION, MANAGEMENT, IMPROVEMENT, MAINTENANCE, REPAIR, SALE AND DISPOSITION OF ANY THE PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A), (II) 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 TRANSACTIONS CONTEMPLATED THEREBY, (III) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29, the The indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments Deed of Trust but will survive the release, foreclosure of the Security Instruments Deed of Trust or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments Deed of Trust and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever.
Appears in 2 contracts
Samples: Loan Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Agreement (KBS Real Estate Investment Trust III, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders, as applicable; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonablenessreasonableness (unless such limitation or requirement is imposed by applicable Law). Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of the Budget, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design. Neither Administrative Agent nor any Indemnified Party shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Indemnified Party and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany Claims, ACTION, LOSS OR COST arising from or with respect to (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSi) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other person engaged by or acting for or under the direction of Borrower or its Affiliates, MAINTENANCE(iii) any failure to protect or insure the Improvements in accordance with the Loan Documents, REPAIR(iv) in connection with the protection and preservation of the Loan collateral (including those with respect to property taxes, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEESv) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way arising out of or with respect to (i) the execution, LENDERSdelivery, 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 transactions contemplated thereby, (ii) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH any Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Aincluding any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (IIiii) THE EXECUTIONany actual or prospective claim, DELIVERYlitigation, ENFORCEMENTinvestigation or proceeding relating to any of the foregoing, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTwhether based on contract, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYtort or any other theory (including any investigation of, (IIIpreparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSand regardless of whether any Indemnitee is a party thereto; (Cc) ANY AND ALL CLAIMSany and all claims, DEMANDSdemands, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION actions or causes of action arising out of or relating to the use of Information (AS DEFINED IN SECTION 9.6as defined in Section 6.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor other materials made available to Administrative Agent or a Lender by Borrower or Guarantor; and (d) any and all liabilities, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT; AND losses, costs or expenses (Dincluding attorney fees and costs) ANY AND ALL LIABILITIESthat any Indemnified Party suffers or incurs as a result of the assertion of any foregoing claim, LOSSESdemand, COSTS OR EXPENSES 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 (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDall the foregoing, TO THE EXTENT PROVIDED UNDER SECTION 4.15collectively, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNIFIED PARTY’S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 Indemniteeany Indemnified Party. Upon demand by Administrative Agent, Borrower shall diligently defend any Claim which affects the Property or is made or commenced against Administrative Agent or any 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 exercise of its reasonable judgment. In the alternative, at any time Administrative Agent may elect to conduct its own defense on behalf of itself or any Lender through counsel selected by Administrative Agent and at the 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. All payments on account Lenders (except for representations of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to and Lenders expressly made in the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever).
Appears in 1 contract
Samples: Loan Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any Plans, any Budget, Project Schedule, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to the Property or the construction of any PropertyImprovements. Administrative Agent’s or Lenders’ acceptance of an assignment of any Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of any Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of the Property or any Property portion thereof or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of the Property or any Propertyportion thereof, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other Persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or any portion thereof or the construction of any Improvements nor any duty of care to Borrower or any other Person to protect against, or inform Borrower or any other Person of the existence of, negligent, faulty, inadequate or defective design or construction of any Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding reasonable attorney’s fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or any portion thereof or any Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other Person engaged by Borrower, MAINTENANCE(iii) any failure to construct, REPAIRcomplete, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL protect or insure any Improvements, (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiv) the payment of costs of labor, INSURANCE PREMIUMSmaterials, AND LEASING COSTS AND BROKER FEESor services supplied for the construction of any Improvements, (v) OR in connection with the protection and preservation of the Loan collateral (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIESincluding those with respect to property taxes, OBLIGATIONSinsurance premiums, LOSSEScompletion of construction, DAMAGESoperation, PENALTIESmanagement, CLAIMSimprovements, DEMANDSmaintenance, ACTIONSrepair, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Asale and disposition), (IIvi) THE EXECUTIONthe failure of the general contractor to transfer or if not permitted by law to transfer, DELIVERYthen cooperate with Administrative Agent to have any permits relating to the Property in the general contractor’s name assigned or otherwise placed in the name of Administrative Agent or its designee when requested to do so under that certain Contractor’s Consent and Agreement of even date herewith, ENFORCEMENTor (vii) the performance of any obligation of Borrower whatsoever; (b) any and all liabilities, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTobligations, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYlosses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of 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 transactions contemplated thereby, (IIIii) ANY COMMITMENT OR THE LOANany Commitment or any Loan or the use or proposed use of the proceeds therefrom, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANor (iii) any actual or prospective claim, OR litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (IVincluding any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSand regardless of whether any Indemnitee is a party thereto; (Ciii) ANY AND ALL CLAIMSany allegations of Borrower’s default or breach of agreement, DEMANDSdefenses to enforcement asserted, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION (AS DEFINED IN SECTION 9.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor default remedies exercised, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT; AND (D) ANY AND ALL LIABILITIESincluding offset rights, LOSSES, COSTS OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 INDEMNITEE IS A PARTY TO SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING AND WHETHER IT IS DEFEATED, SUCCESSFUL OR WITHDRAWNby CVS involving the CVS Lease, (ALL OF THE FOREGOINGiv) the breach by Borrower or the failure of Borrower to perform all of its obligations under the CVS Lease; (c) any and all claims, COLLECTIVELYdemands, THE actions or causes of action arising out of or relating to the use of Information (as defined in Section 6.6) 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 reasonable attorneys’ fees and costs) that any Indemnitee 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 Indemnitee 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 LIABILITIESIndemnified Liabilities”); provided that notwithstanding any provision in any Loan Document to the contrary, INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, that such indemnity shall not, as to any Indemnitee, be available (i) 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; or (ii) with respect to any Indemnified Liabilities first occurring or arising after the Release Date (as defined in the Deed of Trust); provided, that if any payment, performance, release, foreclosure, conveyance or receivership is challenged, in bankruptcy proceedings or otherwise, the Release Date shall be deemed not to have occurred until such challenge is rejected, dismissed or withdrawn with prejudice; and provided, further, that the indemnities in this Section, to the extent applicable to the period prior to the Release Date, shall not terminate upon the Release Date or upon the release, foreclosure or other termination of the Deed of Trust but will survive the Release Date, foreclosure of the Deed of Trust or conveyance in lieu of foreclosure, the repayment of the Secured Indebtedness, the termination of any and all Swap Contracts, the discharge and release of this Deed of Trust and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Consultant that there has been or will be compliance with any Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent’s and Lenders’ right thereafter to insist that all Improvements be constructed in accordance with the applicable Plans, the Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Construction Loan Agreement (Armada Hoffler Properties, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of the Plans, the Budget, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any Propertythe Property or the construction of the Improvements. Administrative Agent’s or Lenders’ acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnified Parties”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding reasonable attorney’s fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors, MAINTENANCEor any other person engaged by, REPAIRthrough or under Borrower, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiii) any failure to construct, INSURANCE PREMIUMScomplete, AND LEASING COSTS AND BROKER FEESprotect or insure the Improvements, (iv) OR the payment of costs of labor, materials, or services supplied for the construction of the Improvements, (IIIv) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe 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) at any time when a Default exists, (vi) the performance of any obligation of Borrower whatsoever, or (vii) Environmental Damages; (Bb) ANY AND ALL LIABILITIESany and all claims by third-parties and related losses, OBLIGATIONSdamages, LOSSESpenalties, DAMAGESclaims, PENALTIESdemands, CLAIMSactions, DEMANDSjudgments, ACTIONSsuits, JUDGMENTScosts, SUITSexpenses and disbursements (including reasonable attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, COSTSincurred by or asserted against any such Indemnified Party in any way relating to or arising out of or in connection with (i) the execution, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDdelivery, TO THE EXTENT PROVIDED UNDER SECTION 4.15enforcement, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ONperformance or administration of any Loan Document or any other agreement, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A)letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (IIii) THE EXECUTIONany Commitment or Loan, DELIVERYor the use or proposed use of the proceeds therefrom, ENFORCEMENTor (iii) any actual or prospective claim, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTlitigation, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYinvestigation 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); (c) any and all claims, demands, actions or causes of action arising out of or relating to the lawful use of Information (as defined in Section 6.6) or other materials obtained through Box or a similar information system set up by and between Borrower and Administrative Agent to exchange information; and (d) any and all liabilities, losses, costs or expenses (including reasonable 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, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNIFIED PARTY’S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, provided that such indemnity shall not, as to any IndemniteeIndemnified Party, 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 Indemniteeany Indemnified Party or the violation by any Indemnified Party of any Law applicable to it as a national bank, insurance company or other regulated institution or any holding company or Affiliate thereof. Upon demand by Administrative Agent, Borrower shall diligently defend any Claim which affects the Property or is made or commenced against Administrative Agent or any 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 exercise of its reasonable judgment. In the alternative, at any time Administrative Agent may elect to conduct its own defense on behalf of itself or any Lender through counsel selected by Administrative Agent and at the 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Inspector that there has been or will be compliance with the Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent’s and Lenders’ right thereafter to insist that the Improvements be constructed substantially in accordance with the Plans, and in accordance with the Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Construction Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s 's or Lenders’ ' judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders, as applicable; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonablenessreasonableness (unless such limitation or requirement is imposed by applicable Law). Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of the Plans, the Budget, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any Propertythe Property or the construction of the New Improvements. Administrative Agent's or Lenders' acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s 's and Lenders’ ' protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower's obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the New Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the New Improvements. Neither Administrative Agent nor any Indemnified Party shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Indemnified Party and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE “INDEMNITEES”the "Indemnitees") FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany Claims, ACTION, LOSS OR COST arising from or with respect to (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSi) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower's surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other person engaged by or acting for or under the direction of Borrower or its Affiliates, MAINTENANCE(iii) any failure to construct, REPAIRcomplete, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL protect or insure the Improvements (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESboth existing and to be constructed) in accordance with the Loan Documents, INSURANCE PREMIUMS(iv) the payment of costs of labor, AND LEASING COSTS AND BROKER FEESmaterials, or services supplied for the construction of the New Improvements, (v) OR in connection with the protection and preservation of the Loan collateral (IIIincluding those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (vi) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way arising out of or with respect to (i) the execution, LENDERSdelivery, 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 transactions contemplated thereby, (ii) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH any Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Aincluding any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), or (IIiii) THE EXECUTIONany actual or prospective claim, DELIVERYlitigation, ENFORCEMENTinvestigation or proceeding relating to any of the foregoing, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTwhether based on contract, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYtort or any other theory (including any investigation of, (IIIpreparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSand regardless of whether any Indemnitee is a party thereto; (Cc) ANY AND ALL CLAIMSany and all claims, DEMANDSdemands, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION actions or causes of action arising out of or relating to the use of Information (AS DEFINED IN SECTION 9.6as defined in Section 6.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor other materials made available to Administrative Agent or a Lender by Borrower or Guarantor; and (d) any and all liabilities, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT; AND losses, costs or expenses (Dincluding attorney fees and costs) ANY AND ALL LIABILITIESthat any Indemnified Party suffers or incurs as a result of the assertion of any foregoing claim, LOSSESdemand, COSTS OR EXPENSES 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 (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDall the foregoing, TO THE EXTENT PROVIDED UNDER SECTION 4.15collectively, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”the "Indemnified Liabilities"), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNIFIED PARTY'S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 Indemniteeany Indemnified Party. Upon demand by Administrative Agent, Borrower shall diligently defend any Claim which affects the Property or is made or commenced against Administrative Agent or any 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 exercise of its reasonable judgment. In the alternative, at any time Administrative Agent may elect to conduct its own defense on behalf of itself or any Lender through counsel selected by Administrative Agent and at the 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 LendersLenders (except for representations of Administrative Agent and Lenders expressly made in the Loan Documents). All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Consultant that there has been or will be compliance with the Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent's and Lenders' right thereafter to insist that the New Improvements be constructed in accordance with the Plans, the Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent's failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent's or Lenders' rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Construction Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders, as applicable; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonablenessreasonableness (unless such limitation or requirement is imposed by applicable law). Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisalAppraisal, environmental, engineering, property condition or other inspection, audit, report Lease or assessment, any contract, any change order, any lease, or any other matter incident to any Propertythe Collateral. Any appraisal, inspection, audit, report appraisal or assessment audit of any Property the Collateral or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any Propertythe Collateral, or relieve any Borrower of such Borrowers’ obligations. Each Borrower has selected its own surveyors, architects, engineers, contractors, materialmen and all other Persons or Guarantor entities furnishing services or materials to the Project owned by such Borrower. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Collateral or any duty of care to any Borrower to protect against, or inform any Borrower of the existence of, negligent, faulty, inadequate or defective Improvements comprising any part of the Collateral. Neither Administrative Agent nor any Indemnified Party shall be liable or responsible for, and each Borrower shall indemnify each Agent-Related Person and each Indemnified Party and their respective Affiliates, directors, officers, agents, attorneys and employees (collectively, the “Indemnitees”) from and against: (a) any Claims, arising from or relating to (i) any defect in any of the Collateral or the Improvements, (ii) the performance or failure of performance of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower or such Borrower’s surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER (COLLECTIVELYcontractors, THE “INDEMNITEES”) FROM AND AGAINST: (A) ANY CLAIMor any other Person, ACTION, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINwith respect to the Improvements, (IIiii) THE PROTECTIONany failure to repair, PRESERVATIONmaintain, OPERATIONprotect or insure the Improvements, MANAGEMENT(iv) the payment of costs of labor, IMPROVEMENTmaterials, MAINTENANCEor services supplied for the repair, REPAIRmaintenance or renovation of the Improvements, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESv) in connection with the protection and preservation of the Collateral (including those with respect to property taxes, INSURANCE PREMIUMSinsurance premiums, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIESoperation, OBLIGATIONSmanagement, LOSSESimprovements, DAMAGESmaintenance, PENALTIESrepair, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Asale and disposition), (IIvi) THE EXECUTIONthe performance of any obligation of each Borrower whatsoever; (b) any and all liabilities, DELIVERYobligations, ENFORCEMENTlosses, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTdamages, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYpenalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way arising out of or with respect to (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 transactions contemplated thereby, (IIIii) ANY COMMITMENT OR THE LOANany Commitment or Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANor (iii) any actual or prospective claim, OR litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (IVincluding any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSand regardless of whether any Indemnitee is a party thereto; (Cc) ANY AND ALL CLAIMSany and all claims, DEMANDSdemands, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION actions or causes of action arising out of or relating to the use of Information (AS DEFINED IN SECTION 9.6as defined in Section 6.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor other materials made available to Administrative Agent or a Lender by any Borrower or Guarantor; and (d) any and all liabilities, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT; AND losses, costs or expenses (Dincluding attorney fees and costs) ANY AND ALL LIABILITIESthat any Indemnified Party suffers or incurs as a result of the assertion of any foregoing claim, LOSSESdemand, COSTS OR EXPENSES 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 (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDall the foregoing, TO THE EXTENT PROVIDED UNDER SECTION 4.15collectively, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNIFIED PARTY’S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 any Indemnified Party. Upon demand by Administrative Agent, Borrowers shall diligently defend any Claim which affects the Collateral or is made or commenced against Administrative Agent or any Lender, whether alone or together with any Borrower or any other Person, all at the sole cost and expense of such Indemnitee. Nothing, including any advance or acceptance of any document or instrument, shall Borrowers and by counsel to be construed as a representation or warranty, express or implied, to any party approved by Administrative Agent in the exercise of its reasonable judgment. In the alternative, at any time Administrative Agent may elect to conduct its own defense on behalf of itself or Lenders. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand any Lender through counsel selected by Administrative Agent therefor. Subject to and at the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination cost and expense of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoeverBorrowers.
Appears in 1 contract
Samples: Credit Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is expressly required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report or assessment of any the Property or the books and records of any Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FOR, AND BORROWERS BORROWER SHALL INDEMNIFY ADMINISTRATIVE AGENT, EACH LENDER, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER (COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST: (A) ANY CLAIM, ACTION, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIESPROPERTY, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREIN, (II) THE PROTECTION, PRESERVATION, OPERATION, MANAGEMENT, IMPROVEMENT, MAINTENANCE, REPAIR, SALE AND DISPOSITION OF ANY THE PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A), (II) 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 TRANSACTIONS CONTEMPLATED THEREBY, (III) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNITEE’S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. 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. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29, the The indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments Deed of Trust but will survive the release, foreclosure of the Security Instruments Deed of Trust or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments Deed of Trust and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust II, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s 's or Lenders’ ' judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Administrative Agent's or Lenders' acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s 's and Lenders’ ' protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower's obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE “INDEMNITEES”the "Indemnitees") FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding attorney's fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower's surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other person, MAINTENANCE(iii) any failure to construct, REPAIRcomplete, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL protect or insure the Improvements, (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiv) the payment of costs of labor, INSURANCE PREMIUMSmaterials, AND LEASING COSTS AND BROKER FEESor services supplied for the construction, alteration or renovation of the Improvements, including, without limitation, Tenant Improvements, (v) OR in connection with the protection and preservation of the Loan collateral (IIIincluding those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (vi) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ONdelivery, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A)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 transactions contemplated thereby, (IIii) THE EXECUTIONany Commitment or Loan, DELIVERYor (iii) any actual or prospective claim, ENFORCEMENTlitigation, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTinvestigation or proceeding relating to any of the foregoing, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYwhether 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 6.6) 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 Indemnitee 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 Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”the "Indemnified Liabilities"), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to or any Lender that there has been or will be compliance with the provisions of Section 9.29Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent's and Lenders' right thereafter to insist that the Improvements be in compliance with the Plans, the Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent's failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent's or Lenders' rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s Agent or Lenders’ Lender's judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lendersor Lender's; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisalthe Plans, environmental, engineering, property condition or other inspection, audit, report or assessmentthe Budget, any contract, any change order, any lease, or any other matter incident to any Propertythe Property or the construction of the Improvements. Administrative Agent's or Lender's acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report inspection or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s Agent and Lenders’ Lender's protection only, and shall not constitute an assumption of responsibility to any from Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower's obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE “INDEMNITEES”the "Indemnities") FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding attorney's fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (I1) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower's surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors, MAINTENANCEthe Construction Consultant, REPAIRor any other person, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiii) any failure to construct, INSURANCE PREMIUMScomplete, AND LEASING COSTS AND BROKER FEESprotect or insure the Improvements, (iv) OR the payment of costs of labor, materials, or services supplied for the construction of the Improvements, (IIIv) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERin 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 (vi) the performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (1) the execution, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ONdelivery, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A)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 transactions contemplated thereby, (IIii) THE EXECUTIONany Commitment or Loan, DELIVERYor (iii) any actual or prospective claim, ENFORCEMENTlitigation, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTinvestigation or proceeding relating to any of the foregoing, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYwhether 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 6.6) or other materials obtained by third parties through Borrower's use of 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 Indemnitee 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 Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSthe "Indemnified Liabilities"); (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 result from the gross negligence or reckless or willful misconduct of such Indemnitee. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Consultant that there has been or will be compliance with the Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent and Lender's right thereafter to insist that the Improvements be constructed in accordance with the Plans, the Loan Documents, and all applicable laws, governmental requirements and restrictive covenants. Administrative Agent's failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent or Lender's rights under the Loan Documents or at law or in equity.
(a) Participation or Sale of Loan. The Administrative Agent and Banc of America Securities LLC (the "Lead Arranger") have heretofore entered into a letter agreement with the Borrower dated as of March 25, 2005, regarding the syndication of the Loan. Additionally, Borrower acknowledges that portions of the Loan may be sold, syndicated or participated by the Lead Arranger and Borrower hereby agrees to fully cooperate with the Lead Arranger and Administrative Agent with respect to such syndication.
Appears in 1 contract
Samples: Construction Loan Agreement (FelCor Lodging Trust Inc)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders, as applicable; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonablenessreasonableness (unless such limitation or requirement is imposed by applicable Law). Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORNeither Administrative Agent nor any Indemnified Party shall be liable or responsible for, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTand Borrower shall indemnify each Agent-Related Person and each Indemnified Party and their respective Affiliates, EACH LENDERdirectors, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESlndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany Claims, ACTIONarising from or with respect to (i) the performance or default of Borrower, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDBorrower’s surveyors, TO THE EXTENT PROVIDED UNDER SECTION 4.15architects, LENDERS) ARISING FROMengineers, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINcontractors or any other person engaged by or acting for or under the direction of Borrower or its Affiliates, (IIii) THE PROTECTIONin connection with the protection and preservation of the Collateral (including those with respect to property taxes, PRESERVATIONinsurance premiums, OPERATIONcompletion of construction, MANAGEMENToperation, IMPROVEMENTmanagement, MAINTENANCEimprovements, REPAIRmaintenance, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESrepair, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Asale and disposition), (IIiii) THE EXECUTIONthe payment of costs of labor, DELIVERYmaterials, ENFORCEMENTor services with respect to the Property, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTor (iv) the performance of any obligation of Borrower whatsoever; (b) any and all liabilities, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYobligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way arising out of or with respect to (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 transactions contemplated thereby, (IIIii) ANY COMMITMENT OR THE LOANany Loan or the use or proposed use of the proceeds therefrom, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANor (iii) any actual or prospective claim, OR litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (IVincluding any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSand regardless of whether any Indemnitee is a party thereto; (Cc) ANY AND ALL CLAIMSany and all claims, DEMANDSdemands, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION actions or causes of action arising out of or relating to the use of Information (AS DEFINED IN SECTION 9.6as defined in Section 7.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor other materials made available to Administrative Agent or a Lender by Borrower or Guarantor; and (d) any and all liabilities, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT; AND losses, costs or expenses (Dincluding attorney fees and costs) ANY AND ALL LIABILITIESthat any Indemnified Party suffers or incurs as a result of the assertion of any foregoing claim, LOSSESdemand, COSTS OR EXPENSES 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 (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDall the foregoing, TO THE EXTENT PROVIDED UNDER SECTION 4.15collectively, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNIFIED PARTY’S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 Indemniteeany Indemnified Party. Upon demand by Administrative Agent, Borrower shall diligently defend any Claim which affects the Property or is made or commenced against Administrative Agent or any 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 exercise of its reasonable judgment. In the alternative, at any time Administrative Agent may elect to conduct its own defense on behalf of itself or any Lender through counsel selected by Administrative Agent and at the 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. All payments on account Lenders except for representations of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent thereforand Lenders expressly made in the Loan Documents. Subject Administrative Agent’s failure to the provisions of Section 9.29, the indemnities in this Section 9.1 inspect shall not terminate upon constitute a waiver of any of Administrative Agent’s or Lenders’ rights under the releaseLoan Documents or at Law or in equity. If Administrative Agent or Lenders inspect and fail to object, foreclosure then such failure to object shall not constitute an acknowledgment that the Improvements or other termination any of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoeverthem comply with applicable Law.
Appears in 1 contract
Samples: Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report or assessment of any the Property or the books and records of any Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORNeither Administrative Agent nor any Lender shall be liable or responsible for, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTand Borrower shall indemnify Administrative Agent, EACH LENDEReach Lender and each Related Party of Administrative Agent and each Lender and their respective Affiliates, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYSincluding attorneys’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDfees and costs) arising from, TO THE EXTENT PROVIDED UNDER SECTION 4.15relating to or otherwise in connection with (i) the Leases, LENDERS) ARISING FROMthe Property, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASESthe Improvements and the other Collateral, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINincluding any defect therein, (IIii) THE PROTECTIONany accounts of Borrower or the Property, PRESERVATION(iii) the protection, OPERATIONpreservation, MANAGEMENToperation, IMPROVEMENTmanagement, MAINTENANCEimprovement, REPAIRmaintenance, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL repair, sale and disposition of the Property and other Collateral (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESincluding those with respect to Real Property Taxes, INSURANCE PREMIUMSInsurance Premiums, AND LEASING COSTS AND BROKER FEESand leasing costs and broker fees) OR or (IIIiv) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYSincluding attorneys’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDfees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH any of the matters described in the foregoing clause (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Aa), (IIii) THE EXECUTIONthe execution, DELIVERYdelivery, ENFORCEMENTenforcement, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTperformance 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 TRANSACTIONS CONTEMPLATED THEREBYletter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (IIIiii) ANY COMMITMENT OR THE LOANany Commitment or the Loan, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANincluding all claims by any actual or alleged broker for Borrower or any Related Party of Borrower for brokerage fees in connection with the Loan or (iv) any actual or prospective claim, OR litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (IVincluding any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) ANY ACTUAL OR PROSPECTIVE CLAIMand regardless of whether any Indemnitee is a party thereto, LITIGATIONincluding all costs and expenses incurred by any Indemnitee in connection with any subpoena, 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSdeposition or otherwise acting as a witness; (Cc) ANY AND ALL CLAIMSany and all claims, DEMANDSdemands, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION actions or causes of action arising out of or relating to the use of Information (AS DEFINED IN SECTION as defined in Section 9.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor other materials obtained through internet, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENTIntralinks or other similar information transmission systems in connection with this Agreement; AND and (Dd) ANY AND ALL LIABILITIESany and all liabilities, LOSSESlosses, COSTS OR EXPENSES costs or expenses (INCLUDING REASONABLE ATTORNEYSincluding attorneys’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDfees and costs) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, TO THE EXTENT PROVIDED UNDER SECTION 4.15demand, LENDERS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF THE ASSERTION OF ANY FOREGOING CLAIMaction, DEMANDcause of action or proceeding, ACTIONor as a result of the preparation of any defense in connection with any foregoing claim, CAUSE OF ACTION OR PROCEEDINGdemand, OR AS A RESULT OF THE PREPARATION OF ANY DEFENSE IN CONNECTION WITH ANY FOREGOING CLAIMaction, DEMANDcause of action or proceeding, ACTIONin all cases, CAUSE OF ACTION OR PROCEEDINGwhether or not an Indemnitee is a party to such claim, IN ALL CASESdemand, WHETHER OR NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIMaction, DEMANDcause of action or proceeding and whether it is defeated, ACTION, CAUSE OF ACTION OR PROCEEDING AND WHETHER IT IS DEFEATED, SUCCESSFUL OR WITHDRAWNsuccessful or withdrawn, (ALL OF THE FOREGOINGall of the foregoing, COLLECTIVELYcollectively, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. Further, Borrower shall not be obligated to indemnify any of the Indemnitees from matters which relate solely to disputes or disagreements among Lenders and/or Administrative Agent, or any default by any of the Lenders and/or Administrative Agent of any of their respective obligations under this Agreement to Borrower or to each other. 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. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29, the The indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments Mortgage but will survive the release, foreclosure of the Security Instruments Mortgage or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments Mortgage and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever.
Appears in 1 contract
Samples: Loan Agreement (Skechers Usa Inc)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any Plans, any Budget, Project Schedule, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to the Property or the construction of any PropertyImprovements. Administrative Agent’s or Lenders’ acceptance of an assignment of any Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of any Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of the Property or any Property portion thereof or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of the Property or any Propertyportion thereof, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other Persons or entities furnishing services or materials to each of the Apartments Unit Project and the Office Tower/Retail Unit Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or any portion thereof or the construction of any Improvements nor any duty of care to Borrower or any other Person to protect against, or inform Borrower or any other Person of the existence of, negligent, faulty, inadequate or defective design or construction of any Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnities”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding reasonable attorney’s fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or any portion thereof or any Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other Person engaged by Borrower, MAINTENANCE(iii) any failure to construct, REPAIRcomplete, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL protect or insure any Improvements, (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiv) the payment of costs of labor, INSURANCE PREMIUMSmaterials, AND LEASING COSTS AND BROKER FEESor services supplied for the construction of any Improvements, (v) OR in connection with the protection and preservation of the Loan collateral (IIIincluding those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (vi) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding reasonable attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ONdelivery, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A)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 transactions contemplated thereby, (IIii) THE EXECUTIONany Commitment or any Loan or the use or proposed use of the proceeds therefrom, DELIVERYor (iii) any actual or prospective claim, ENFORCEMENTlitigation, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTinvestigation or proceeding relating to any of the foregoing, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYwhether 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 6.6) 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 reasonable attorneys’ fees and costs) that any Indemnitee 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 Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Consultant that there has been or will be compliance with any Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent’s and Lenders’ right thereafter to insist that all Improvements be constructed in accordance with the applicable Plans, the Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Construction Loan Agreement (Armada Hoffler Properties, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is expressly required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report or assessment of any the Property or the books and records of any Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FOR, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENT, EACH LENDER, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER (COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST: (A) ANY CLAIM, ACTION, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREIN, (II) THE PROTECTION, PRESERVATION, OPERATION, MANAGEMENT, IMPROVEMENT, MAINTENANCE, REPAIR, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A), (II) 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 TRANSACTIONS CONTEMPLATED THEREBY, (III) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments Deeds of Trust but will survive the release, foreclosure of the Security Instruments Deeds of Trust or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments Deeds of Trust and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT II, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly ------------------------------ provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s Agent or Lenders’ Lender's judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lendersor Lender's; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisalthe Plans, environmental, engineering, property condition or other inspection, audit, report or assessmentthe Budget, any contract, any change order, any lease, or any other matter incident to any Propertythe Property or the construction of the Improvements. Administrative Agent's or Lender's acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report inspection or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s Agent and Lenders’ Lender's protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower's obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE “INDEMNITEES”the "Indemnities") FROM AND AGAINSTfrom and against: (Aa) ANY CLAIM----------- any claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding attorney's fees and costs arising from or relating to (i) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower's surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors, MAINTENANCEthe Construction Consultant, REPAIRor any other person, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiii) any failure to construct, INSURANCE PREMIUMScomplete, AND LEASING COSTS AND BROKER FEESprotect or insure the Improvements, (iv) OR the payment of costs of labor, materials, or services supplied for the construction of the Improvements, (IIIv) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; in connection with the protection and preservation of the Loan collateral (B) ANY AND ALL LIABILITIESincluding those with respect to property taxes, OBLIGATIONSinsurance premiums, LOSSEScompletion of construction, DAMAGESoperation, PENALTIESmanagement, CLAIMSimprovements, DEMANDSmaintenance, ACTIONSrepair, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Asale and disposition), or (IIvi) 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 TRANSACTIONS CONTEMPLATED THEREBYthe performance of any obligation of Borrower whatsoever, (IIIb) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, and all claims, demands, actionsactions or causes of action that are asserted against any Indemnitee by any person (other than the Administrative Agent or any Lender) relating directly or indirectly to a claim, judgmentsdemand, suitsaction or cause of action that such person asserts or may assert against Borrower, costsPermanent Lender, if applicable, Guarantor, or any of their Affiliates or any of their officers or directors; (c) any and all claims, demands, actions or causes of action arising out of or relating to, the Loan Documents, any predecessor loan documents, the Commitments, the use or contemplated use of the proceeds of any Loan, or the relationship of Borrower, Guarantor, Permanent Lender, if applicable, the Administrative Agent and Lenders under this Agreement; (d) any and all claims, demands, actions or causes of action arising out of or relating to the use of Information (as defined in Section 6.6) or other materials obtained through internet, Intralinks or other similar information transmission systems in connection with this Agreement; (e) any administrative or investigative proceeding by any Tribunal arising out of or related to a claim, demand, action or cause of action described in subsection (a) (b) (c) or (d) above; and (e) any and all liabilities, losses, costs or expenses (including attorney fees) that any Indemnitee suffers or disbursements are determined 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 Indemnitee 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"); provided that no ----------------------- -------- Indemnitee shall be entitled to indemnification for any loss caused by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the its own gross negligence or willful misconduct of such or for any loss asserted against it by another Indemnitee. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to Agent, any Lender or the provisions of Section 9.29Construction Consultant that there has been or will be compliance with the Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent and Lender's right thereafter to insist that the Improvements be constructed in accordance with the Plans, the Loan Documents, and all applicable laws, governmental requirements and restrictive covenants. Administrative Agent's failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent or Lender's rights under the Loan Documents or at law or in equity.
Appears in 1 contract
Samples: Construction Loan Agreement (Wells Real Estate Investment Trust Inc)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ any Lender’s judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenderssuch Lender; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lendersor such Lender; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lendersany Lender, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any Budget, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change orderMarriott Agreement, any leaseLease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report appraisal or assessment audit of any of the Property or the books and records of any either Borrower or GuarantorOperating Lessee, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to either Borrower, Operating Lessee or any Borrower or anyone else other Person with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any either Borrower or Guarantor Operating Lessee of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORNeither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property. Neither Administrative Agent nor any Lender shall be liable or responsible for, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTand Borrowers and Operating Lessee shall, EACH LENDERjointly and severally, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINST: from and against any claim, action, loss or cost (including reasonable attorney’s fees and costs) arising from or relating to (i) (A) ANY CLAIMany defect in the Property or the Improvements, ACTION(B) any failure to protect or insure the Improvements, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDC) in connection with the protection and preservation of any of the Collateral or performance of any work at the Property (including any failure to pay any filing, TO THE EXTENT PROVIDED UNDER SECTION 4.15registration and recording fee, LENDERSrecordation and transfer tax, title search or examination fee, engineer fee, Tax, Common Charge, Insurance Premium, or other cost of the operation, management, improvement, maintenance, repair, sale or disposition of any Collateral), (D) ARISING FROMthe performance or failure of performance of any obligation of either Borrower or Operating Lessee hereunder or under the other Loan Documents, RELATING TO OR OTHERWISE IN CONNECTION WITH (E) any transaction, act, omission, event or circumstance in any way connected with the Property, including any bodily injury, death or property damage occurring in, upon or in the vicinity of the Property through any cause whatsoever at any time, (F) any Lease, (G) any Condominium Document, (H) any Marriott Agreement, (I) THE LEASESany Purchase contract or (I) any other agreement to which either Borrower or Operating Lessee is a party or by which any of the Collateral is bound; (ii) any and all liabilities, THE PROPERTIESobligations, THE IMPROVEMENTS AND THE OTHER COLLATERALlosses, INCLUDING ANY DEFECT THEREINdamages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (IIincluding reasonable attorney fees and costs) THE PROTECTIONof any kind or nature whatsoever which may at any time be imposed on, PRESERVATIONincurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (A) the execution, OPERATIONdelivery, MANAGEMENTenforcement, IMPROVEMENTperformance or administration of any Loan Document or any other agreement, MAINTENANCEletter or instrument delivered by either Borrower, REPAIROperating Lessee or Guarantor in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIESany Commitment or the Loan or the use or proposed use of the proceeds therefrom, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A), (II) 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 TRANSACTIONS CONTEMPLATED THEREBY, (III) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; or (C) ANY AND ALL CLAIMSany actual or prospective claim, DEMANDSlitigation, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (AS DEFINED IN SECTION 9.6including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) OR OTHER MATERIALS OBTAINED THROUGH INTERNETand regardless of whether any Indemnitee is a party thereto; (iii) any and all claims, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENTdemands, 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, except if as a result of such Indemnitee’s breach of the terms of Section 6.6; AND and (Div) ANY AND ALL LIABILITIESany and all liabilities, LOSSESlosses, COSTS OR EXPENSES costs or expenses (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding reasonable attorney fees and costs) that any Indemnitee suffers or incurs as a result of the assertion of any foregoing claim, TO THE EXTENT PROVIDED UNDER SECTION 4.15demand, LENDERS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF THE ASSERTION OF ANY FOREGOING CLAIMaction, DEMANDcause of action or proceeding, ACTIONor as a result of the preparation of any defense in connection with any foregoing claim, CAUSE OF ACTION OR PROCEEDINGdemand, OR AS A RESULT OF THE PREPARATION OF ANY DEFENSE IN CONNECTION WITH ANY FOREGOING CLAIMaction, DEMANDcause of action or proceeding, ACTIONin all cases, CAUSE OF ACTION OR PROCEEDINGwhether or not an Indemnitee is a party to such claim, IN ALL CASESdemand, WHETHER OR NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIMaction, DEMANDcause of action or proceeding and whether it is defeated, ACTION, CAUSE OF ACTION OR PROCEEDING AND WHETHER IT IS DEFEATED, SUCCESSFUL OR WITHDRAWNsuccessful or withdrawn, (ALL OF THE FOREGOINGall the foregoing, COLLECTIVELYcollectively, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, that such indemnity shall not, as to any Indemniteeall Indemnitees, 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. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to or any Lender that there has been or will be compliance with the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, applicable Governmental Approvals, Laws, governmental requirements or restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any bankruptcy of Administrative Agent’s or other debtor relief proceeding, and any other event whatsoeverLenders’ rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is expressly required under any Loan Document, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report or assessment of any the Property or the books and records of any Borrower or Guarantor, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FOR, AND BORROWERS BORROWER SHALL INDEMNIFY ADMINISTRATIVE AGENT, EACH LENDER, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER (COLLECTIVELY, THE “INDEMNITEES”) FROM AND AGAINST: (A) ANY CLAIM, ACTION, LOSS OR COST (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIESPROPERTY, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREIN, (II) THE PROTECTION, PRESERVATION, OPERATION, MANAGEMENT, IMPROVEMENT, MAINTENANCE, REPAIR, SALE AND DISPOSITION OF ANY THE PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXES, INSURANCE PREMIUMS, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A), (II) 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 TRANSACTIONS CONTEMPLATED THEREBY, (III) ANY COMMITMENT OR THE LOAN, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOAN, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, Page 45 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE “INDEMNIFIED LIABILITIES”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments Deed of Trust but will survive the release, foreclosure of the Security Instruments Deed of Trust or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments Deed of Trust and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoever.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Administrative Agent’s or Lenders’ acceptance of an assignment of the Plans for the benefit of Administrative Agent and Lenders shall not constitute approval of the Plans. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding attorney’s fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other person, MAINTENANCE(iii) any failure to construct, REPAIRcomplete, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL protect or insure the Improvements, (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiv) the payment of costs of labor, INSURANCE PREMIUMSmaterials, AND LEASING COSTS AND BROKER FEESor services supplied for the construction, alteration or renovation of the Improvements, including, without limitation, Tenant Improvements, (v) OR in connection with the protection and preservation of the Loan collateral (IIIincluding those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (vi) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ONdelivery, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A)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 transactions contemplated thereby, (IIii) THE EXECUTIONany Commitment or Loan, DELIVERYor (iii) any actual or prospective claim, ENFORCEMENTlitigation, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTinvestigation or proceeding relating to any of the foregoing, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYwhether 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 6.6) 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 Indemnitee 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 Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to or any Lender that there has been or will be compliance with the provisions of Section 9.29Plans, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other 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 Default, shall not constitute a waiver of any bankruptcy Default then existing, or other debtor relief proceedinga waiver of Administrative Agent’s and Lenders’ right thereafter to insist that the Improvements be in compliance with the Plans, the Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any other event whatsoeverof Administrative Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any budget, any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any leaseLease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORNeither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property. Neither Administrative Agent nor any Lender shall be liable or responsible for, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTand Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, EACH LENDERdirectors, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding reasonable attorney’s fees and costs but excluding consequential or indirect damages unless such consequential or indirect damages are incurred and required to be paid by Administrative Agent or a Lender to a third-party) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONany failure to protect or insure the Improvements, PRESERVATION(iii) in connection with the protection and preservation of the Loan collateral (including those with respect to filing, OPERATIONregistration and recording fees, MANAGEMENTrecordation and transfer taxes, IMPROVEMENTtitle search or examination fees, MAINTENANCEengineer fees, REPAIRTaxes, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESInsurance Premiums, INSURANCE PREMIUMSoperation, AND LEASING COSTS AND BROKER FEES) OR (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; (B) ANY AND ALL LIABILITIESmanagement, OBLIGATIONSimprovements, LOSSESmaintenance, DAMAGESrepair, PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Asale and disposition), (IIiv) 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 TRANSACTIONS CONTEMPLATED THEREBYthe performance of any obligation of Borrower hereunder, (IIIv) ANY COMMITMENT OR THE LOANany transaction, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANact, OR omission, event or circumstance in any way connected with the Property including, but not limited to, any bodily injury, death or property damage occurring in, upon or in the vicinity of the Property through any cause whatsoever at any time or (IVvi) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSany Lease; (Cb) ANY AND ALL CLAIMSany and all liabilities, DEMANDSobligations, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (AS DEFINED IN SECTION 9.6including reasonable attorney fees and costs) OR OTHER MATERIALS OBTAINED THROUGH INTERNETof any kind or nature whatsoever which may at any time be imposed on, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT; AND incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (Di) ANY AND ALL LIABILITIESthe execution, LOSSESdelivery, COSTS OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDenforcement, TO THE EXTENT PROVIDED UNDER SECTION 4.15performance or administration of any Loan Document or any other agreement, LENDERS) THAT ANY INDEMNITEE 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 INDEMNITEE IS A PARTY TO SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION OR PROCEEDING AND WHETHER IT IS DEFEATED, SUCCESSFUL OR WITHDRAWNletter or instrument delivered by Borrower in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ALL OF THE FOREGOINGii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, COLLECTIVELYor (iii) any actual or prospective claim, THE 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 6.6) or other materials obtained through internet, Intralinks or other similar information transmission systems in connection with this Agreement, except if as a result of such Indemnitee’s breach of the terms of Section 6.6; and (d) any and all liabilities, losses, costs or expenses (including reasonable attorney fees and costs) that any Indemnitee 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 Indemnitee 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 LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 of such IndemniteeIndemnitee (or its Affiliates, directors, officers, agents, attorneys and/or employees). 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. All payments on account of the Indemnified Liabilities Inspection shall be due and payable ten (10) Business Days after demand not constitute an acknowledgment or representation by Administrative Agent therefor. Subject to or any Lender that there has been or will be compliance with the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, or applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any bankruptcy of Administrative Agent’s or other debtor relief proceedingLenders’ rights under the Loan Documents or at Law or in equity. Notwithstanding the foregoing, and any other event whatsoeverBorrower’s indemnity obligations under this Section 6.1 shall not apply to events or circumstances occurring after the payoff of the Loans.
Appears in 1 contract
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s or Lenders’ judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to the extent applicable, or Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisal, environmental, engineering, property condition or other inspection, audit, report or assessment, any contract, any change order, any lease, or any other matter incident to any the Property. Any appraisal, inspection, audit, report appraisal or assessment audit of any the Property or the books and records of any Borrower or GuarantorBorrower, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to any Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of any the Property, or relieve any Borrower or Guarantor of any of its Borrower’s obligations. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORBorrower has selected all surveyors, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTarchitects, EACH LENDERengineers, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER contractors, materialmen and all other persons or entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect the Property or the construction of the Improvements nor any duty of care to Borrower or any other person to protect against, or inform Borrower or any other person of the existence of, negligent, faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender shall be liable or responsible for, and Borrower shall indemnify each Agent-Related Person and each Lender and their respective Affiliates, directors, officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE the “INDEMNITEESIndemnitees”) FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany claim, ACTIONaction, LOSS OR COST loss or cost (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSincluding attorney’s fees and costs) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH arising from or relating to (Ii) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in the Property or the Improvements, (IIii) THE PROTECTIONthe performance or default of Borrower, PRESERVATIONBorrower’s surveyors, OPERATIONarchitects, MANAGEMENTengineers, IMPROVEMENTcontractors or any other person, MAINTENANCE(iii) any failure to construct, REPAIRcomplete, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL protect or insure the Improvements, (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiv) the payment of costs of labor, INSURANCE PREMIUMSmaterials, AND LEASING COSTS AND BROKER FEESor services supplied for the construction, alteration or renovation of the Improvements, including, without limitation, tenant improvements, (v) OR in connection with the protection and preservation of the Loan collateral (IIIincluding those with respect to property taxes, insurance premiums, completion of construction, operation, management, improvements, maintenance, repair, sale and disposition), or (vi) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVERthe performance of any obligation of Borrower whatsoever; (Bb) ANY AND ALL LIABILITIESany and all liabilities, OBLIGATIONSobligations, LOSSESlosses, DAMAGESdamages, PENALTIESpenalties, CLAIMSclaims, DEMANDSdemands, ACTIONSactions, JUDGMENTSjudgments, SUITSsuits, COSTScosts, EXPENSES AND DISBURSEMENTS expenses and disbursements (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, TO THE EXTENT PROVIDED UNDER SECTION 4.15incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ONdelivery, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (A)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 transactions contemplated thereby, (IIii) THE EXECUTIONany Commitment or Loan, DELIVERYor (iii) any actual or prospective claim, ENFORCEMENTlitigation, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTinvestigation or proceeding relating to any of the foregoing, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYwhether 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 6.6) 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 Indemnitee 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 Indemnitee is a party to such claim, demand, action, cause of action or proceeding and whether it is defeated, successful or withdrawn, (III) ANY COMMITMENT OR THE LOANall the foregoing, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANcollectively, OR (IV) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESS; (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 9.6) 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 REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) THAT ANY INDEMNITEE 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 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, THE the “INDEMNIFIED LIABILITIESIndemnified Liabilities”), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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. 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. All payments on account Inspection, whether or not followed by notice of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand by Administrative Agent therefor. Subject to the provisions of Section 9.29Default, the indemnities in this Section 9.1 shall not terminate upon constitute a waiver of any Default then existing, or a waiver of Administrative Agent’s and Lenders’ right thereafter to insist that the release, foreclosure or other termination of Improvements be in compliance with the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, and all applicable Laws, governmental requirements and restrictive covenants. Administrative Agent’s failure to inspect shall not constitute a waiver of any bankruptcy of Administrative Agent’s or other debtor relief proceeding, and any other event whatsoeverLenders’ rights under the Loan Documents or at Law or in equity.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Consents; Borrower’s Indemnity. Except where otherwise expressly provided in the Loan Documents, in any instance where the approval, consent or the exercise of Administrative Agent’s 's or the Required Lenders’ ' judgment is required under any Loan Documentrequired, the granting or denial of such approval or consent and the exercise of such judgment shall be (a) within the sole discretion of Administrative Agent or the Required Lenders; (b) deemed to have been given only by a specific writing intended for the purpose given and executed by Administrative Agent or, to or the extent applicable, Required Lenders; and (c) free from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent or any Lenders, neither Administrative Agent nor any Lender has any obligation or responsibility whatsoever for the adequacy, form or content of any appraisalAppraisal, environmental, engineering, property condition or other inspection, audit, report Lease or assessment, any contract, any change order, any lease, or any other matter incident to any PropertyProject in the Collateral Pool. Any appraisal, inspection, audit, report appraisal or assessment audit of any Property Project in the Collateral Pool or the books and records of any Borrower or GuarantorLoan Party, or the procuring of documents and financial and other information, by or on behalf of Administrative Agent shall be for Administrative Agent’s 's and Lenders’ ' protection only, and shall not constitute an assumption of responsibility to any Borrower Loan Party or anyone else with regard to the condition, value, construction, maintenance or operation of any PropertyProject in the Collateral Pool, or relieve any Borrower Loan Party of such Loan Party's obligations. Each Loan Party has selected its own surveyors, architects, engineers, contractors, materialmen and all other Persons or Guarantor entities furnishing services or materials to the Project in the Collateral Pool owned by such Loan Party. Neither Administrative Agent nor any Lender has any duty to supervise or to inspect any of the Projects in the Collateral Pool or any duty of care to any Loan Party to protect against, or inform any Loan Party of the existence of, negligent, faulty, inadequate or defective Improvements comprising any part of any of its obligationsProject in the Collateral Pool. NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER SHALL BE LIABLE OR RESPONSIBLE FORNeither Administrative Agent nor any Indemnified Party shall be liable or responsible for, AND BORROWERS SHALL INDEMNIFY ADMINISTRATIVE AGENTand each Loan Party shall indemnify each Agent-Related Person and each Indemnified Party and their respective Affiliates, EACH LENDERdirectors, AND EACH RELATED PARTY OF ADMINISTRATIVE AGENT AND EACH LENDER officers, agents, attorneys and employees (COLLECTIVELYcollectively, THE “INDEMNITEES”the "INDEMNITIES") FROM AND AGAINSTfrom and against: (Aa) ANY CLAIMany Claims, ACTION, LOSS OR COST arising from or relating to (INCLUDING ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERSi) ARISING FROM, RELATING TO OR OTHERWISE IN CONNECTION WITH (I) THE LEASES, THE PROPERTIES, THE IMPROVEMENTS AND THE OTHER COLLATERAL, INCLUDING ANY DEFECT THEREINany defect in any Project in the Collateral Pool or the Improvements, (IIii) THE PROTECTIONthe performance or failure of performance of any Loan Party or such Loan Party's surveyors, PRESERVATIONarchitects, OPERATIONengineers, MANAGEMENTcontractors, IMPROVEMENTor any other Person, MAINTENANCEwith respect to the Improvements, REPAIR(iii) any failure to repair, SALE AND DISPOSITION OF ANY PROPERTY AND OTHER COLLATERAL maintain, protect or insure the Improvements, (INCLUDING THOSE WITH RESPECT TO REAL PROPERTY TAXESiv) the payment of costs of labor, INSURANCE PREMIUMSmaterials, AND LEASING COSTS AND BROKER FEES) OR or services supplied for the repair, maintenance or renovation of the Improvements, (III) THE PERFORMANCE OF ANY OBLIGATION OF ANY BORROWER WHATSOEVER; v)in connection with the protection and preservation of the Collateral (B) ANY AND ALL LIABILITIESincluding those with respect to property taxes, OBLIGATIONSinsurance premiums, LOSSESoperation, DAMAGESmanagement, PENALTIESimprovements, CLAIMSmaintenance, DEMANDSrepair, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT AND, TO THE EXTENT PROVIDED UNDER SECTION 4.15, LENDERS) OF ANY KIND OR NATURE WHATSOEVER WHICH MAY AT ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNITEE IN ANY WAY RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH (I) ANY OF THE MATTERS DESCRIBED IN THE FOREGOING CLAUSE (Asale and disposition), (IIvi) THE EXECUTIONthe performance of any obligation of each Loan Party whatsoever, DELIVERYor (vii) Environmental Damages; (b) any and all liabilities, ENFORCEMENTobligations, PERFORMANCE OR ADMINISTRATION OF ANY LOAN DOCUMENT OR ANY OTHER AGREEMENTlosses, LETTER OR INSTRUMENT DELIVERED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED THEREBY OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBYdamages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including attorney fees and costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitees in any way relating to or arising out of 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 transactions contemplated thereby, (IIIii) ANY COMMITMENT OR THE LOANany Commitment or Loan or the use or proposed use of the proceeds therefrom, INCLUDING ALL CLAIMS BY ANY ACTUAL OR ALLEGED BROKER FOR ANY BORROWER OR ANY RELATED PARTY OF ANY BORROWER FOR BROKERAGE FEES IN CONNECTION WITH THE LOANor (iii) any actual or prospective claim, OR litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (IVincluding any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) 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, INCLUDING ALL COSTS AND EXPENSES INCURRED BY ANY INDEMNITEE IN CONNECTION WITH ANY SUBPOENA, DEPOSITION OR OTHERWISE ACTING AS A WITNESSand regardless of whether any Indemnitee is a party thereto; (Cc) ANY AND ALL CLAIMSany and all claims, DEMANDSdemands, ACTIONS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE USE OF INFORMATION actions or causes of action arising out of or relating to the use of Information (AS DEFINED IN as defined in SECTION 9.66.6) OR OTHER MATERIALS OBTAINED THROUGH INTERNETor other materials obtained through internet, INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENTIntralinks or other similar information transmission systems in connection with this Agreement; AND and (Dd) ANY AND ALL LIABILITIESany and all liabilities, LOSSESlosses, COSTS OR EXPENSES costs or expenses (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF ADMINISTRATIVE AGENT ANDincluding reasonable attorney fees and costs) that any Indemnified Party suffers or incurs as a result of the assertion of any foregoing claim, TO THE EXTENT PROVIDED UNDER SECTION 4.15demand, LENDERS) THAT ANY INDEMNITEE SUFFERS OR INCURS AS A RESULT OF THE ASSERTION OF ANY FOREGOING CLAIMaction, DEMANDcause of action or proceeding, ACTIONor as a result of the preparation of any defense in connection with any foregoing claim, CAUSE OF ACTION OR PROCEEDINGdemand, OR AS A RESULT OF THE PREPARATION OF ANY DEFENSE IN CONNECTION WITH ANY FOREGOING CLAIMaction, DEMANDcause of action or proceeding, ACTIONin all cases, CAUSE OF ACTION OR PROCEEDINGwhether or not an Indemnified Party is a party to such claim, IN ALL CASESdemand, WHETHER OR NOT AN INDEMNITEE IS A PARTY TO SUCH CLAIMaction, DEMANDcause of action or proceeding and whether it is defeated, ACTION, CAUSE OF ACTION OR PROCEEDING AND WHETHER IT IS DEFEATED, SUCCESSFUL OR WITHDRAWNsuccessful or withdrawn, (ALL OF THE FOREGOINGall the foregoing, COLLECTIVELYcollectively, THE “the "INDEMNIFIED LIABILITIES”"), INCLUDING IN WHOLE OR PART ANY LOSS ARISING OUT OF AN INDEMNITEES’ INDEMNIFIED PARTY'S STRICT LIABILITY, OR COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE; provided, however, 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 IndemniteeIndemnified Party. NothingUpon demand by Administrative Agent, including each Loan Party shall diligently defend any advance Claim which affects a Project in the Collateral Pool or acceptance is made or commenced against Administrative Agent or any Lender, whether alone or together with any Loan Party or any other Person, all at the sole cost and expense of any document or instrument, shall such Loan Party and by counsel to be construed as a representation or warranty, express or implied, to any party approved by Administrative Agent in the exercise of its reasonable judgment. In the alternative, at any time Administrative Agent may elect to conduct its own defense on behalf of itself or Lenders. All payments on account of the Indemnified Liabilities shall be due and payable ten (10) Business Days after demand any Lender through counsel selected by Administrative Agent therefor. Subject to and at the provisions of Section 9.29, the indemnities in this Section 9.1 shall not terminate upon the release, foreclosure or other termination reasonable cost and expense of the Security Instruments but will survive the release, foreclosure of the Security Instruments or conveyance in lieu of foreclosure, the repayment of the Indebtedness, the discharge and release of the Security Instruments and the other Loan Documents, any bankruptcy or other debtor relief proceeding, and any other event whatsoeverParties.
Appears in 1 contract
Samples: Credit Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
