Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, (v) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or any of the properties now or previously used by the Credit Parties, or the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee of such properties. (2) If, with respect to any Finance Party, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date, has the effect of causing any loss to such Finance Party or reducing such Finance Party’s rate of return by (w) increasing the cost to such Finance Party of performing its obligations under this Agreement or in respect of any Outstandings (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in general), (x) requiring such Finance Party to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) reducing any amount payable to such Finance Party under this Agreement or in respect of any Outstandings, (z) causing such Finance Party to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party under this Agreement or in respect of any Outstanding, then such Finance Party may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (i) on demand, pay such amounts as such Finance Party specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error. (3) The Borrower shall pay to each Finance Party on demand any amounts required to compensate such Finance Party for any loss suffered or incurred by it as a result of the failure of the Borrower to effect an Advance in the manner and at the time specified in any Borrowing Notice, or the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error. (4) The provisions of this Section 9.5 shall survive the termination of this Agreement and the repayment of all Outstandings. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 2 contracts
Samples: Credit Agreement (Timmins Gold Corp.), Credit Agreement (Timmins Gold Corp.)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions transaction contemplated in by this Agreement are is completed, indemnify and hold each of the Lenders Lender and the Administrative Agent and each of their respective its officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Loan Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (ivii) a default Default (whether or not constituting a Default or an Event of Default) by the Borrower), and (viii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of to any of the Credit Loan Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty obligation under any of the Credit Documents or otherwise in connection with its interest in any SecurityLoan Documents, whether or not such proceedings are directly related to the enforcement of any Credit Loan Document, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or any of the properties now or previously used by the Credit Parties, or the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee of such properties.
(2) If, with respect to any Finance Party, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date, has the effect of causing any loss to such Finance Party or reducing such Finance Party’s rate of return by (w) increasing the cost to such Finance Party of performing its obligations under this Agreement or in respect of any Outstandings (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in general), (x) requiring such Finance Party to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) reducing any amount payable to such Finance Party under this Agreement or in respect of any Outstandings, (z) causing such Finance Party to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party under this Agreement or in respect of any Outstanding, then such Finance Party may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (i) on demand, pay such amounts as such Finance Party specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower shall pay to each Finance Party the Lender all reasonable costs and expenses (including all legal fees and disbursements on demand any amounts required to compensate such Finance Party for any loss suffered or a solicitor and own client basis) incurred by it as a result of the failure of the Borrower to effect an Advance Lender in the manner and at the time specified in any Borrowing Notice, or the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) The provisions of this Section 9.5 shall survive the termination of connection with this Agreement and the repayment of all Outstandings. The other Loan Documents; provided that the aggregate amount payable by the Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses Lender, pursuant to this Section 7.4(2), shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counselnot exceed $15,000.
Appears in 2 contracts
Samples: Loan Termination Agreement (Gilla Inc.), Loan Agreement (Gilla Inc.)
Costs, Expenses and Indemnity. (1a) The Borrower shall, whether or not the transactions transaction contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of on demand) , any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, (vii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of Loan Documents and performing its exercising or performing, or causing obligations under the exercise or performance of, any right, power or duty under any of the Credit Loan Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused by the gross negligence or wilful misconduct of the an Indemnified Person; , and (viiii) the presence of any Contaminants at, on or under, under or the discharge or likely discharge of any Contaminants from, contaminants from any of the Subject Properties or any of the properties now or previously used by the Credit PartiesBorrower or any of its Subsidiaries, or the breach by or non- non-compliance with any Environmental Law by any mortgagor, owner owner, or lessee of such properties, except to the extent that any of the same have been caused by an Indemnified Party.
(2) If, with respect to any Finance Party, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date, has the effect of causing any loss to such Finance Party or reducing such Finance Party’s rate of return by (w) increasing the cost to such Finance Party of performing its obligations under this Agreement or in respect of any Outstandings (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in general), (x) requiring such Finance Party to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) reducing any amount payable to such Finance Party under this Agreement or in respect of any Outstandings, (z) causing such Finance Party to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party under this Agreement or in respect of any Outstanding, then such Finance Party may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (i) on demand, pay such amounts as such Finance Party specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3b) The Borrower shall pay to each Finance Party the Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of (i) the failure of the Borrower to effect an Advance give any notice in the manner and at the time specified in any Borrowing Noticetimes required by this Agreement, or (ii) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposesprima facie evidence of the amount of such loss, absent manifest error.
(4c) The provisions of this Section 9.5 9.6 shall survive the termination of this Agreement and the repayment of all OutstandingsMaturity Amounts. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party the Lender or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 2 contracts
Samples: Loan Agreement (Dassault Systemes Sa), Loan Agreement (Dassault Systemes Sa)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent each Agent-Related Person and each of their respective officers, directors, employees employees, agents, trustees and agents advisors (each an “Indemnified Person”"INDEMNIFIED PERSON") harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any the preparation, execution and delivery of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; Commitment Letter, Term Sheet and Fee Letter, (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, ; (iii) any advice of counsel as to the exercise of the rights, powers and/or rights and duties of the Administrative Agent and/or and the Lenders with respect to the administration of the Credit FacilityFacilities, the Credit Documents or any transaction contemplated under the Credit Documents, including any interpretation issues; (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, ; (v) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with and performing its interest in any Security, whether or not such proceedings are directly related to obligations under the enforcement of any Credit Document, Documents except to the extent caused that it shall be determined in a final, non-appealable judgment by a court of competent jurisdiction that such losses, claims, damages, liabilities or expenses resulted primarily from the gross negligence or wilful misconduct of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, under or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or Hazardous Substances from any of the properties now or previously used by the Credit PartiesBorrower or any of its subsidiaries, or the breach by or non- compliance with of any Environmental Law by the Borrower or any of its subsidiaries or by any mortgagor, owner owner, or lessee of such properties. No Indemnified Person shall be liable for any damages arising from the use by others of information provided by or on behalf of the Borrower and obtained through the Internet, Intralinks or other similar information transmission systems in connection with the Credit Facilities except to the extent that, as to any Indemnified Person, it shall be determined by a final, non-appealable judgment by a court of competent jurisdiction that such damages resulted primarily from gross negligence or willful misconduct of such Indemnified Person. The Borrower agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to any Person, including the Borrower, any of its subsidiaries and Affiliates or their respective security holders or creditors arising out of or in connection with any aspect of this Credit Agreement or the Credit Facilities, except for direct, as opposed to consequential, damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from the gross negligence or willful misconduct of such Indemnified Person.
(2) If, with respect to any Finance PartyLender, (i) any change in any law, rule, regulation, judgment or order Law of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, Law occurring or becoming effective after this date, the Closing Date; or (ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the dateClosing Date, has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Party’s the Lender's rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but (other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s the Lender's income or capital in general)), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any Accommodations Outstanding, then such Finance Party then, subject to Section 12.06(3), the Lender may give notice to the Borrower specifying specifying, with reasonable detail, the nature of the event giving rise to the loss and the Borrower may either, : (iA) on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss loss, or (iiB) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party the Lender or the Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding to such Lender and terminate such the Lender’s Commitments's Commitments all without affecting the Commitments or Accommodations Outstanding of any other Lender. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower shall not be liable to compensate a Lender for any costs, reduction, payment or foregone return if such compensation is not being claimed as a general practice by such Lender from customers of such Lender who by agreement are liable to pay such or similar compensation. In determining the amount of compensation payable by the Borrower under Section 12.06(2), such Lender shall use all reasonable efforts to minimize the compensation payable by the Borrower including using all reasonable efforts to obtain refunds or credits in the ordinary course of its business, and any compensation paid by the Borrower which is later determined not to have been properly payable or in respect of which a refund, credit or compensation has been received shall forthwith be reimbursed by such Lender to the Borrower.
(4) The Borrower shall pay to each Finance Party Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of (i) any payment being made in respect of a BA Instrument or Libor Advance other than on the maturity applicable to it; (ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement; (iii) the failure of the Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, ; or (iv) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(45) The provisions of this Section 9.5 12.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower acknowledges that neither its their obligation to indemnify nor any actual indemnification by it them of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s 's losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Credit Agreement (Sun Media Corp)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “"Indemnified Person”") harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, and (vii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with and performing its interest in any Security, whether or not such proceedings are directly related to obligations under the enforcement of any Credit Document, Documents except to the extent caused by the gross negligence or wilful willful misconduct of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or any of the properties now or previously used by the Credit Parties, or the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee of such properties.
(2) If, with respect to any Finance PartyLender, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the this date, has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Party’s the Lender's rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in generalrequirements), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any OutstandingAccommodations Outstanding (but other than a loss or reduction resulting from a higher rate or a change in the calculation of income or capital tax relating to the Lender's income or capital in general), then such Finance Party the Lender may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (iiii) on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss loss, or (iiiv) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party the Lender or the Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings applicable Accommodations Outstanding and terminate such the Lender’s 's Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower shall pay to each Finance Party the Lenders on demand any amounts required to compensate such Finance Party the Lenders for any loss suffered or incurred by it them as a result of (i) any payment being made in respect of an Advance other than on the maturity or expiration or on the last day of a Libor Interest Period applicable to it, (ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement, (iii) the failure of the Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, or (iv) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) Whether or not any Accommodation is made under the Credit Facilities, the Borrower shall pay to each of the Administrative Agent and each of the Lenders on demand all costs and expenses incurred by it, its agents, officers, directors and employees and any receiver or receiver-manager appointed by it or by a court in connection with the Credit Documents or the Credit Facilities, including, without limitation (i) the preparation, execution, filing and registration of any of the Credit Documents, any actual or proposed amendment or modification thereof or any waiver thereunder and all instruments supplemental or ancillary thereto, (ii) obtaining advice as to the rights and responsibilities of the Administrative Agent or any of the Lenders under the Credit Documents, and (iii) the defence, establishment, protection or enforcement of any of the rights or remedies of the Administrative Agent or any of the Lenders under any of the Credit Documents including, without limitation, all costs and expenses of establishing the validity and enforceability of, or of collection of amounts owing under, any of the Credit Documents or of any enforcement of the Security, including, without limitation, in each case, all of the fees, expenses and disbursements of its counsel, incurred in connection therewith, and including all sales, value-added or similar taxes payable by it (whether refundable or not) on all such costs and expenses.
(5) The provisions of this Section 9.5 9.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s 's losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Credit Agreement (Bracknell Corp)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions transaction contemplated in by this Agreement are is completed, indemnify and hold each of the Lenders Lender and the Administrative Agent and each of their respective its officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Loan Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (ivii) a default Default (whether or not constituting a Default or an Event of Default) by the Borrower), and (viii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of to any of the Credit Loan Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty obligation under any of the Credit Documents or otherwise in connection with its interest in any SecurityLoan Documents, whether or not such proceedings are directly related to the enforcement of any Credit Loan Document, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or any of the properties now or previously used by the Credit Parties, or the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee of such properties.
(2) If, with respect to any Finance Party, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date, has the effect of causing any loss to such Finance Party or reducing such Finance Party’s rate of return by (w) increasing the cost to such Finance Party of performing its obligations under this Agreement or in respect of any Outstandings (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in general), (x) requiring such Finance Party to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) reducing any amount payable to such Finance Party under this Agreement or in respect of any Outstandings, (z) causing such Finance Party to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party under this Agreement or in respect of any Outstanding, then such Finance Party may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (i) on demand, pay such amounts as such Finance Party specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower shall pay to each Finance Party on demand any amounts required to compensate such Finance Party for any loss suffered or incurred by it as a result of the failure of the Borrower to effect an Advance in the manner and at the time specified in any Borrowing Notice, or the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) The provisions of this Section 9.5 shall survive the termination of this Agreement and the repayment of all Outstandings. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Loan Termination Agreement
Costs, Expenses and Indemnity. (1) The Borrower Company shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold RBC Europe and each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Loan Documents and any related amendment, waiver or consent, ; (iiiii) the exercise amount of any fees for any advice of counsel to the rights, powers and/or Administrative Agent as to the rights and duties of the Administrative Agent and/or Agent, RBC Europe and the Lenders with respect to the administration of the Credit FacilityFacilities, the Credit Loan Documents or any transaction contemplated under the Credit Loan Documents, ; (iviii) a default (whether or not constituting a Default or an Event of Default) by the Borrower, ; (viv) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of Loan Documents and performing its exercising or performing, or causing obligations under the exercise or performance of, any right, power or duty under any of the Credit Loan Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; and (viv) the presence of any Contaminants at, on or under, under or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or hazardous substances from any of the properties now or previously used by the Credit PartiesCompany, any of its subsidiaries or the breach by or non- compliance with of any Environmental Law by the Company or any of its subsidiaries or by any mortgagor, owner owner, or lessee of such properties.
(2) If, with respect to RBC Europe or any Finance PartyLender, (i) any change in any law, rule, regulation, judgment or order Law of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, Law occurring or becoming effective after this date, the date hereof; or (ii) compliance by such Finance Party Person with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the datedate hereof (being a direction, request or requirement which lenders customarily comply with), has the effect of causing any loss Loss to such Finance Party the Lender or reducing such Finance Partythe Lender’s rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but (other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Partythe Lender’s income or capital in general)), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any Accommodations Outstanding, then such Finance Party then, subject to Section 10.06(3), the Lender may give notice to the Borrower Company specifying the nature of the event giving rise to the loss Loss and the Borrower Company may either, either (ia) on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss Loss, or (iib) if such Finance Party is a Lender and provided no loss Loss has yet been suffered by such Finance Party the Lender or the Borrower Company has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding to such Lender and terminate such the Lender’s CommitmentsCommitments all without affecting the Commitments or Accommodations Outstanding of any other Lender. Notwithstanding the foregoing, the Company shall not be liable for any such Loss arising more than 30 days prior to notice to the Company. A certificate as to the amount of any such loss Loss submitted in good faith by such Finance Party a Lender to the Borrower Company accompanied by reasonable details thereof shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower Company shall not be liable to compensate a Lender for any costs, reduction, payment or foregone return if such compensation is not being claimed as a general practice by such Lender from customers of such Lender who by agreement are liable to pay such or similar compensation. In determining the amount of compensation payable by the Company under this Agreement, such Lender shall use all reasonable efforts to minimize the compensation payable by the Company including using all reasonable efforts to obtain refunds or credits in the ordinary course of its business, and any compensation paid by the Company which is later determined not to have been properly payable or in respect of which a refund, credit or compensation has been received shall forthwith be reimbursed by such Lender to the Company.
(4) The Company shall pay to each Finance Party Lender on demand any amounts required to compensate such Finance Party the Lender for any loss Loss suffered or incurred by it as a result of (i) the failure of the Borrower Company to give any notice in the manner and at the times required by this Agreement; (ii) the failure of the Company to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, ; or (iii) the failure of the Borrower Company to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss Loss submitted in good faith by a Finance Party Lender to the Borrower Company shall be conclusive and binding for all purposes, absent manifest error.
(45) The provisions of this Section 9.5 10.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower Company acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent, RBC Europe or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Senior Secured Credit and Guarantee Agreement (Open Text Corp)
Costs, Expenses and Indemnity. (1) The Borrower Borrowers shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “"Indemnified Person”") harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the a Borrower, (vii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with and performing its interest in any Security, whether or not such proceedings are directly related to obligations under the enforcement of any Credit Document, Documents except to the extent caused by the gross negligence or wilful willful misconduct of the Indemnified Person; , and (viiii) the presence of any Contaminants Hazardous Substances at, above, on or under, or the discharge Release or likely discharge Release of any Contaminants Hazardous Substances from, any of the Subject Properties or any of the properties now or previously used by the Credit PartiesBorrowers or any of their Subsidiaries, or the breach by by, or non- non-compliance with with, any Environmental Law by any mortgagor, owner owner, or lessee of such properties.
(2) If, with respect to any Finance PartyLender, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the this date, has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Party’s the Lender's rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in generalrequirements), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any OutstandingAccommodations Outstanding (but other than a loss or reduction resulting from a higher rate or a change in the calculation of income or capital tax relating to the Lender's income or capital in general), then such Finance Party the Lender may give notice to the a Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (iiii) on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss loss, or (iiiv) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party the Lender or the a Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings applicable Accommodations Outstanding and terminate such the Lender’s 's Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the a Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower Borrowers shall pay to each Finance Party the Lenders on demand any amounts required to compensate such Finance Party the Lenders for any loss suffered or incurred by it them as a result of (i) any payment being made in respect of a BA Instrument, Documentary Credit or Advance other than on the maturity or expiration or on the last day of a Libor Interest Period applicable to it, (ii) the failure of a Borrower to give any notice in the manner and at the times required by this Agreement, (iii) the failure of a Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, or (iv) the failure of the a Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party Lender to the a Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) Whether or not any Accommodation is made under the Credit Facilities, the Borrowers shall pay to each of the Administrative Agent and each of the Lenders on demand all costs and expenses incurred by it, its agents, officers, directors and employees and any receiver or receiver-manager appointed by it or by a court in connection with the Credit Documents or the Credit Facilities, including, without limitation (i) the preparation, execution, filing and registration of any of the Credit Documents, any actual or proposed amendment or modification thereof or any waiver thereunder and all instruments supplemental or ancillary thereto, (ii) obtaining advice as to the rights and responsibilities of the Administrative Agent or any of the Lenders under the Credit Documents, and (iii) the defence, establishment, protection or enforcement of any of the rights or remedies of the Administrative Agent or any of the Lenders under any of the Credit Documents including, without limitation, all costs and expenses of establishing the validity and enforceability of, or of collection of amounts owing under, any of the Credit Documents or of any enforcement of the Security, including, without limitation, in each case, all of the fees, expenses and disbursements of its counsel, incurred in connection therewith, and including all sales, value-added or similar taxes payable by it (whether refundable or not) on all such costs and expenses.
(5) The provisions of this Section 9.5 11.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Each Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s 's losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Credit Agreement (Bracknell Corp)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions hereby contemplated in this Agreement are completedconsummated, indemnify and hold each of the Lenders Lender and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) upon notice by the Agent any amounts required to compensate the Indemnified such Person for, any cost, expense, claim Claim or loss Loss suffered by, imposed on, on or asserted against, against the Indemnified Person Agent and each Lender as a result of, in respect of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or and refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, consent relating thereto; (iiiii) reasonable fees associated with any advice of Agent's counsel as to the exercise of the rights, powers and/or rights and duties of the Administrative Agent and/or and the Lenders with respect to the Transaction and the administration of the Credit FacilityFacilities, the Credit Documents or any transaction contemplated under the Credit Documents, thereunder; (iviii) a default (whether or not constituting a Default or an Event of Default) by the Borrower, Borrower or Guarantor hereunder; and (viv) any proceedings brought by or against the Indemnified Person, Agent or in which any of the Indemnified Person otherwise participates, Lenders due to its entering into this Agreement, performing its obligations under this Agreement, providing any Accommodation or being a party any use of any Accommodation by the Borrower, save and except in each case for the gross negligence, fraud or misconduct of the Agent or any Lender.
(2) The Borrower shall indemnify and hold the Lenders and the Agent and each of their respective officers, directors, employees and agents (collectively, the `'Indemnified Parties") harmless from and against any and all Environmental Liabilities and Costs incurred or suffered by, or asserted against, any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related Indemnified Parties (except for Environmental Liabilities and Costs attributable to the enforcement of any Credit Documentgross negligence, except to the extent caused by the gross negligence fraud or wilful misconduct of the Indemnified Person; Parties) in connection with the Credit Facilities, including all Environmental Liabilities and Costs with respect to or as a direct or indirect result of, (vii) the presence of any Contaminants at, on or underunder or the Release or likely Release of Hazardous Substances from any properties now, or any time heretofore or hereafter, owned, leased, operated or used by the discharge or likely discharge of any Contaminants fromBorrower, any of the Subject Properties Guarantor or any of the properties now their respective Subsidiaries; or previously used by the Credit Parties, or (ii) the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee of such propertiesproperties in their use of such properties of any Environmental Laws.
(23) If, with respect to any Finance Party, Lender (i) any change in any law, rule, regulation, judgment or order of general applicationLaw, or any change in the interpretation or application of such law, rule, regulation, judgment or order, any Law occurring or becoming effective after this date, the date hereof; or (ii) compliance by such Finance Party Lender with any direction, request or requirement (whether or not having the force of lawLaw) of any Governmental Entity made or becoming effective after the datedate hereof, has the effect of causing any loss Loss to such Finance Party or reducing such Finance Party’s rate of return Lender by (wv) increasing the cost to such Finance Party Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in generalconnection therewith), (xw) requiring such Finance Party Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) Accommodations Outstanding or otherwise reducing any amount payable the effective return to such Finance Party Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (zx) reducing any amount payable to such Lender under this Agreement or in respect of any Accommodations Outstanding by any amount it deems material, acting reasonably (other than a reduction resulting from a higher rate of income or capital tax relating to such Lender's income or capital in general), (y) causing such Finance Party Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party Lender under this Agreement or in respect of any Accommodations Outstanding, or (z) otherwise reducing the effective return to such Lender under this Agreement or in respect of any Accommodations Outstanding or on its total capital as a result of entering into this Agreement, then such Finance Party Lender may give written notice to the Borrower specifying the nature of the event giving rise to the loss such Loss and the Borrower may either, (iiii) on demand, pay such amounts as such Finance Party specifies is Lender may specify to be necessary to compensate it for any such loss Loss; or (iiiv) if such Finance Party is a Lender and provided no loss Loss has yet been suffered by such Finance Party a Lender or the Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding and terminate such Lender’s 's Commitments. A certificate as to the amount of any such loss Loss, submitted in good faith by such Finance Party a Lender to the Borrower Borrower, shall be conclusive and binding for all purposes, constitute evidence of such amounts absent manifest error.
(34) The Borrower shall pay to each Finance Party on demand Lender no later than three Business Days after receiving written notice from the Agent any amounts required to compensate such Finance Party Lender for any loss Loss suffered or incurred by it such Lender as a result of (i) any payment being made (due to acceleration of the maturity of any Accommodation pursuant to Article 9, a mandatory or optional prepayment of principal or otherwise) in respect of a Bankers' Acceptance, Draft, BA Equivalent Note or Letter of Credit or Advance, otherwise than on the maturity or expiration thereof; (ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement; (iii) the failure of the Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, or the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) The provisions of this Section 9.5 shall survive the termination of this Agreement and the repayment of all Outstandings. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.; or
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify hereby indemnifies and agrees to defend and hold harmless the Agent, the Issue Lender, and each of the Lenders and the Administrative Agent and each of their respective directors, officers, directorsagents, employees and agents counsel (each an “Indemnified Person”"INDEMNIFIED PERSON") harmless fromfrom and against any and all losses, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) any amounts required to compensate the Indemnified Person forclaims, any costdamages, expenseliabilities, claim deficiencies, judgments or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) expenses incurred by any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents them (except to the extent caused by the that it is finally judicially determined to have resulted from their own gross negligence or wilful misconduct willful misconduct) arising out of or by reason of (a) any litigation, investigations, claims or proceedings which arise out of or are in any way related to (i) this Credit Agreement, any other Credit Document or the Indemnified Party; transactions contemplated hereby, (ii) the preparation, execution and delivery of, preservation issuance of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consentLetters of Credit, (iii) the exercise failure of the rightsIssue Lender to honor a drawing under any Letter of Credit, powers and/or duties as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, (iv) any actual or proposed use by the Borrower of the Administrative Agent and/or the Lenders with respect to the administration proceeds of the Accommodations, or (v) the Agent's or the Lenders' entering into this Credit FacilityAgreement, the other Credit Documents or any transaction contemplated under the Credit Documentsother agreements and documents relating hereto, (ivb) a default (whether any remedial or not constituting a Default or an Event of Default) other action taken by the Borrower, (v) Borrower or any proceedings brought by Additional Loan Party or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise Lenders in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused compliance by the gross negligence Borrower or wilful misconduct any Additional Loan Party or any of the Indemnified Person; and their Subsidiaries, or any of their respective properties, with any federal, provincial or local environmental laws, acts, rules, regulations, orders, directions, ordinances, criteria or guidelines, (vic) the presence of any Contaminants contaminants at, on or under, or the discharge or reasonably likely discharge of any Contaminants from, any of the Subject Properties or contaminants from any of the properties now or previously used by the Credit PartiesBorrower or any Addition Loan Party, or the breach by or non- non-compliance with any Environmental Law by any mortgagor, owner or lessee of such properties. In addition, the Borrower shall, upon demand, pay to the Agent and any Lender all costs and expenses (including the reasonable fees and disbursements of counsel and other professionals) paid or incurred by the Agent or such Lender in (w) enforcing or defending its rights under or in respect of this Credit Agreement, the other Credit Documents or any other document or instrument now or hereafter executed and delivered in connection herewith, (x) in collecting all or any part of the Obligations, (y) in foreclosing or otherwise collecting upon the Collateral or any part thereof (including, without limiting the foregoing, in preserving the security interest in, possession of, repairing, protecting, ensuring, preparing for disposition, foreclosing, realizing, collecting, selling, transferring, delivering or obtaining payment of the Collateral) and (z) obtaining any legal, accounting or other advice (including remuneration of receivers) in connection with any of the foregoing.
(2) The Borrower agrees to reimburse the Agent's Expenses promptly on demand.
(3) If, with respect to any Finance Partythe Lender, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity Authority made or becoming effective after the date, has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Party’s the Lender's rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s the Lender's income or capital in general), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any Accommodations Outstanding, then such Finance Party the Lender may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may eithershall, (i) subject to Section 11.9, on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitmentsloss. A certificate as to the amount of any such loss submitted in good faith by such Finance Party the Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(34) The Borrower shall pay to each Finance Party Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of (i) any payment or prepayment being made in respect of a BA Instrument, Letter of Credit or Advance other than on the failure maturity or expiration or on the last day of the Borrower an Eurodollar Interest Period applicable to effect an Advance in the manner and at the time specified in any Borrowing Noticeit, or (ii) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party the Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(45) The provisions of this Section 9.5 11.6 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party the Lender, the Agent or any other Indemnified Person in respect of such Person’s 's losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Costs, Expenses and Indemnity. (1) The Borrower Borrowers shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “"Indemnified Person”") harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the a Borrower, (vii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with and performing its interest in any Security, whether or not such proceedings are directly related to obligations under the enforcement of any Credit Document, Documents except to the extent caused by the gross negligence or wilful willful misconduct of the Indemnified Person; , and (viiii) the presence of any Contaminants contaminants at, on or under, or the discharge or likely discharge of any Contaminants contaminants from, any of the Subject Properties or any of the 96 -95- properties now or previously used by the Credit PartiesBorrowers or any of their Subsidiaries, or the breach by by, or non- non-compliance with with, any Environmental Law by any mortgagor, owner owner, or lessee of such properties.
(2) If, with respect to any Finance PartyLender, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the this date, has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Party’s the Lender's rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in generalrequirements), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any OutstandingAccommodations Outstanding (but other than a loss or reduction resulting from a higher rate or a change in the calculation of income or capital tax relating to the Lender's income or capital in general), then such Finance Party the Lender may give notice to the a Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (iiii) on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss loss, or (iiiv) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party the Lender or the a Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings applicable Accommodations Outstanding and terminate such the Lender’s 's Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the a Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower Borrowers shall pay to each Finance Party the Lenders on demand any amounts required to compensate such Finance Party the Lenders for any loss suffered or incurred by it them as a result of (i) any payment being made in respect of a BA Instrument, Documentary Credit or Advance other than on the maturity or expiration or on the last day of a Libor Interest Period applicable to it, (ii) the failure of a Borrower to give any notice in the manner and at the times required by this Agreement, (iii) the failure of a Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, or (iv) the failure of the a Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party Lender to the a Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) Whether or not any Accommodation is made under the Credit Facilities, the Borrowers shall pay to each of the Administrative Agent and each of the Lenders on demand all costs and expenses incurred by it, its agents, officers, directors and employees and any receiver or receiver-manager appointed by it or by a court in connection with the Credit Documents or the Credit Facilities, including, without limitation (i) the preparation, execution, filing and registration of any of the Credit Documents, any actual or proposed amendment or modification thereof or any waiver thereunder and all instruments supplemental or ancillary thereto, (ii) obtaining advice as to the rights and responsibilities of the Administrative Agent or any of the Lenders under the Credit Documents, and (iii) the defence, establishment, protection or enforcement of any of the rights or remedies of the Administrative Agent or any of the Lenders under any of the Credit Documents including, without limitation, all costs and expenses of establishing the validity and enforceability of, or of collection of amounts owing under, any of the Credit Documents or of any enforcement of the Security, including, without limitation, in each case, all of the fees, expenses and disbursements of its counsel, incurred in connection therewith, and including all sales, value-added or similar taxes payable by it (whether refundable or not) on all such costs and expenses.
(5) The provisions of this Section 9.5 11.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Each Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s 's losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Credit Agreement (Bracknell Corp)
Costs, Expenses and Indemnity. (1a) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and their Affiliates and each of their respective officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any claim, loss, cost or expense (including any reasonable legal cost, expense, claim or loss ) suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of of:
(i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, ; or
(iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (ivii) a default (whether or not constituting a Default or an Event of Default) by the Borrower, (v) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused by the gross negligence or negligence, wilful misconduct or default of the Indemnified Person as finally determined in a non-appealable judgment by a court of competent jurisdiction.
(a) except to the extent the Borrower shall be prejudiced from instituting or defending any proceeding relating thereto) and the Borrower, upon request of the Indemnified Person; , shall retain counsel satisfactory to the Indemnified Person, acting reasonably, to represent the Indemnified Person and any others the Borrower may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless:
(viiii) the presence Borrower and the Indemnified Person shall have mutually agreed to the retention of such counsel; or
(iv) the named parties to any such proceeding include the Borrower and the Indemnified Person and representation of such parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Borrower shall not, in connection with any proceeding or related proceedings in the same jurisdiction and other than as provided for in the preceding sentence, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. A certificate as to the amount of any Contaminants at, on or under, or such loss submitted in good faith by a Lender to the discharge or likely discharge of any Contaminants from, any of the Subject Properties or any of the properties now or previously used by the Credit Parties, or the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee Borrower shall be prima facie evidence of such propertiesamount.
(2b) If, with respect to any Finance Party, Lender:
(i) any change in any law, rule, regulation, judgment or order Law of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or orderany Law, occurring or becoming effective after this date, or the Effective Date and the date that the Lender became a party hereto; or
(ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the such date, ; has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Partythe Lender’s rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve reserve, liquidity or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Partythe Lender’s income or capital in general), (x) requiring such Finance Party the Lender to maintain any liquidity or maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, or (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any Accommodations Outstanding, then such Finance Party the Lender may give notice to the Borrower specifying the nature and details of the event giving rise to the loss, together with a certificate of a duly authorized officer of the Lender setting forth the amount necessary to compensate the Lender for such loss and the Borrower may eitherbasis of calculation thereof and the Borrower:
(A) shall, (i) on demand, demand pay such amounts as such Finance Party the Lender specifies is as necessary to compensate it for any such loss loss, reduction or expense, provided that if the Lender fails to give notice to the Borrower within three (ii3) if months of the date on which the Lender should reasonably be expected to have been able to comply with its obligations to notify the Borrower as aforesaid, no payment of any compensation for such Finance Party loss, reduction or expense shall be required to be made by the Borrower in respect of the period before the date the Lender has complied with its obligations as aforesaid except in circumstances where such loss, reduction or expense is a Lender and imposed retrospectively; and
(B) may, provided no loss has yet been suffered by such Finance Party the Lender or the Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding to such Lender together with interest accrued thereon and unpaid Fees in relation thereto and terminate such the Lender’s CommitmentsCommitment by notice to such Lender specifying the date of prepayment and the Borrower shall make such prepayment in accordance with such notice. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the Borrower shall be conclusive prima facie evidence of such amount. Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and binding Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States, Canadian or other regulatory authorities, in each case pursuant to Basel III ((i) and (ii) being, the “New Rules”), shall in each case be deemed to be a “change in Law” for the purposes of this Section 11.6(b), regardless of the date enacted, adopted or issued, in each case (iii) to the extent materially different from that in effect on the date hereof and (iv) to the extent that such New Rules have general application to substantially all purposes, absent manifest errorof the banks which are subject to the New Rules in question.
(3c) The Borrower shall pay to each Finance Party Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of:
(i) any payment being made in respect of a BA Instrument, other than on the maturity thereof, or in respect of a Eurodollar Rate Advance, other than on the last day of the Interest Period thereof;
(ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement;
(iii) the failure of the Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, or ; or
(iv) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any such loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest errorprima facie evidence of such amount.
(4d) The provisions of this Section 9.5 11.6 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Costs, Expenses and Indemnity. (1a) The Borrower Borrowers shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and their Affiliates and each of their respective officers, directors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any claim, loss, cost or expense (including any reasonable legal cost, expense, claim or loss ) suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of of:
(i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, ; or
(iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (ivii) a default (whether or not constituting a Default or an Event of Default) by the Borrower, (v) any proceedings brought by Borrowers or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Documentthem, except to the extent caused by the gross negligence or negligence, wilful misconduct or default of the Indemnified Person as finally determined in a non-appealable judgment by a court of competent jurisdiction. In case any proceeding shall be instituted involving any Person in respect of which indemnity may be sought pursuant to this Section 12.6(a), such Indemnified Person shall promptly notify a Borrower in writing (but failure to do so shall not relieve the Borrowers from any liability which they may have pursuant to this Section 12.6(a) except to the extent the Borrowers shall be prejudiced from instituting or defending any proceeding relating thereto) and the Borrowers, upon request of the Indemnified Person; , shall retain counsel satisfactory to the Indemnified Person, acting reasonably, to represent the Indemnified Person and any others the Borrowers may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless:
(viiii) the presence Borrowers and the Indemnified Person shall have mutually agreed to the retention of such counsel; or
(iv) the named parties to any Contaminants at, on or under, or such proceeding include the discharge or likely discharge of any Contaminants from, any of the Subject Properties Borrowers or any of them and the properties now or previously used Indemnified Person and representation of such parties by the Credit Partiessame counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Borrowers shall not, or the breach by or non- compliance in connection with any Environmental Law proceeding or related proceedings in the same jurisdiction and other than as provided for in the preceding sentence, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. A certificate as to the amount of any such loss submitted in good faith by a Lender to the Borrowers or any mortgagor, owner or lessee of them shall be prima facie evidence of such propertiesamount.
(2b) If, with respect to any Finance Party, Lender:
(i) any change in any law, rule, regulation, judgment or order Law of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or orderany Law, occurring or becoming effective after this date, or the Effective Date and the date that the Lender became a party hereto; or
(ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the such date, ; has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Partythe Lender’s rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve reserve, liquidity or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Partythe Lender’s income or capital in general), (x) requiring such Finance Party the Lender to maintain any liquidity or maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, or (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any Accommodations Outstanding, then such Finance Party the Lender may give notice to the each relevant Borrower specifying the nature and details of the event giving rise to the loss, together with a certificate of a duly authorized officer of the Lender setting forth the amount necessary to compensate the Lender for such loss and the Borrower may eitherbasis of calculation thereof and the applicable Borrower:
(A) shall, (i) on demand, demand pay such amounts as such Finance Party the Lender specifies is as necessary to compensate it for any such loss loss, reduction or expense, provided that if the Lender fails to give notice to such Borrower within three (ii3) if months of the date on which the Lender should reasonably be expected to have been able to comply with its obligations to notify such Finance Party Borrower as aforesaid, no payment of any compensation for such loss, reduction or expense shall be required to be made by such Borrower in respect of the period before the date the Lender has complied with its obligations as aforesaid except in circumstances where such loss, reduction or expense is a Lender and imposed retrospectively; and
(B) may, provided no loss has yet been suffered by such Finance Party the Lender or the applicable Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding to such Lender together with interest accrued thereon and unpaid Fees in relation thereto and terminate such the Lender’s CommitmentsCommitment by notice to such Lender specifying the date of prepayment and such Borrower shall make such prepayment in accordance with such notice. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the Borrower Borrowers or any of them shall be conclusive prima facie evidence of such amount. Notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and binding Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States, Canadian or other regulatory authorities, in each case pursuant to Basel III ((i) and (ii) being, the “New Rules”), shall in each case be deemed to be a “change in Law” for the purposes of this Section 12.6(b), regardless of the date enacted, adopted or issued, in each case (iii) to the extent materially different from that in effect on the date hereof and (iv) to the extent that such New Rules have general application to substantially all purposes, absent manifest errorof the banks which are subject to the New Rules in question.
(3c) The applicable Borrower shall pay to each Finance Party Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of:
(i) any payment being made in respect of a BA Instrument, other than on the maturity thereof, or in respect of a SOFR Loan, other than on the last day of the Interest Period thereof;
(ii) the failure of the applicable Borrower to give any notice in the manner and at the times required by this Agreement;
(iii) the failure of the applicable Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, or ; or
(iv) the failure of the applicable Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any such loss submitted in good faith by a Finance Party Lender to the applicable Borrower shall be conclusive and binding for all purposes, absent manifest errorprima facie evidence of such amount.
(4d) The provisions of this Section 9.5 12.6 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower Each of the Borrowers acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Revolving Credit Facility (Canadian Pacific Kansas City LTD/Cn)
Costs, Expenses and Indemnity. (1) The Borrower shalland each Subsidiary shall indemnify, whether or not the transactions contemplated in this Agreement are completed, indemnify defend and hold each of harmless the Lenders and the Administrative Agent and each of Lender and persons or entities owned or controlled by or affiliated with such Persons and their respective directors, officers, directorsshareholders, employees partners, employees, consultants and agents (each herein individually called an “"Indemnified Person”Party," and collectively called "Indemnified Parties") harmless fromfrom and against, and shall reimburse and pay to such Indemnified Person promptly (and in any event within five Business Days of demand) any amounts required to compensate the Indemnified Person forParties with respect to, any costand all claims, expensedemands, claim liabilities, losses, damages (including, without limitation, actual, consequential, exemplary and punitive damages), causes of action, judgments, penalties, fees, costs and expenses (including, without limitation, attorneys' fees, court costs and legal expenses and consultants' and experts' fees and expenses), of any and every kind or loss suffered bycharacter, known or unknown, fixed or contingent, that may be imposed onupon, asserted against or asserted against, the incurred or paid by or on behalf of any Indemnified Person as a result Party on account of, connected with in connection with, or arising out of (ia) any bodily injury or death or property damage occurring in or upon or in the vicinity of the Credit Collateral through any cause whatsoever, (b) any act performed or omitted to be performed hereunder or the breach of or failure to perform any warranty, representation, indemnity, covenant, agreement or condition contained in this Agreement, the Security Documents or any action taken other Loan Documents, (c) any transaction, act, omission, event or omitted by circumstance arising out of or in any way connected with the Collateral or with this Agreement, the Security Documents or any other Loan Documents (other than fees and expenses related to the closing or modification of the transactions contemplated herein), and (d) the violation of or failure to comply with any statute, law, rule, regulation or order now existing or hereafter occurring. The foregoing indemnities shall not apply to any Indemnified Person under or in relation to any of the Credit Documents except Party to the extent the subject of the indemnification is caused by or arises out of the gross negligence or wilful willful misconduct of that or another Indemnified Party. If Borrower or Subsidiary and the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring ofParty are jointly named in any action covered by this Section 12.6, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, (v) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or any of the properties now or previously used by the Credit Parties, or the breach by or non- compliance with any Environmental Law by any mortgagor, owner or lessee of such properties.
(2) If, with respect to any Finance Party, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date, has the effect of causing any loss to such Finance Party or reducing such Finance Party’s rate of return by (w) increasing the cost to such Finance Party of performing its obligations under this Agreement or in respect of any Outstandings (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in general), (x) requiring such Finance Party to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) reducing any amount payable to such Finance Party under this Agreement or in respect of any Outstandings, (z) causing such Finance Party to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party under this Agreement or in respect of any Outstanding, then such Finance Party may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (i) on demand, pay such amounts as such Finance Party specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower shall pay to each Finance Party on demand any amounts required to compensate such Finance Party for any loss suffered or incurred by it as a result of the failure of the Borrower to effect an Advance in the manner and at the time specified in any Borrowing Notice, or the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(4) The provisions of this Section 9.5 shall survive the termination of this Agreement and the repayment of all Outstandings. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.shall
Appears in 1 contract
Samples: Loan Agreement (T Netix Inc)
Costs, Expenses and Indemnity. (1a) The Borrower shall, whether or not the transactions transaction contemplated in this Agreement are completed, indemnify and hold each of the Lenders Lender and the Administrative Agent and each of their respective its officers, directors, employees and agents (each an “"Indemnified Person”") harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of on demand) , any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, (iii) the exercise of the rights, powers and/or duties of the Administrative Agent and/or the Lenders with respect to the administration of the Credit Facility, the Credit Documents or any transaction contemplated under the Credit Documents, (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, (vii) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of Loan Documents and performing its exercising or performing, or causing obligations under the exercise or performance of, any right, power or duty under any of the Credit Loan Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document, except to the extent caused by the gross negligence or wilful misconduct of the an Indemnified Person; , and (viiii) the presence of any Contaminants at, on or under, under or the discharge or likely discharge of any Contaminants from, contaminants from any of the Subject Properties or any of the properties now or previously used by the Credit PartiesBorrower or any of its Subsidiaries, or the breach by or non- non-compliance with any Environmental Law by any mortgagor, owner owner, or lessee of such properties, except to the extent that any of the same have been caused by an Indemnified Party.
(2) If, with respect to any Finance Party, (i) any change in any law, rule, regulation, judgment or order of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by such Finance Party with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date, has the effect of causing any loss to such Finance Party or reducing such Finance Party’s rate of return by (w) increasing the cost to such Finance Party of performing its obligations under this Agreement or in respect of any Outstandings (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in general), (x) requiring such Finance Party to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) reducing any amount payable to such Finance Party under this Agreement or in respect of any Outstandings, (z) causing such Finance Party to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party under this Agreement or in respect of any Outstanding, then such Finance Party may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower may either, (i) on demand, pay such amounts as such Finance Party specifies is necessary to compensate it for any such loss or (ii) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party or the Borrower has paid the compensating amount to such Finance Party, repay the Outstandings and terminate such Lender’s Commitments. A certificate as to the amount of any such loss submitted in good faith by such Finance Party to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3b) The Borrower shall pay to each Finance Party the Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of (i) the failure of the Borrower to effect an Advance give any notice in the manner and at the time specified in any Borrowing Noticetimes required by this Agreement, or (ii) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party the Lender to the Borrower shall be conclusive and binding for all purposesprima facie evidence of the amount of such loss, absent manifest error.
(4c) The provisions of this Section 9.5 8.7 shall survive the termination of this Agreement and the repayment of all OutstandingsMaturity Amounts. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party the Lender or any other Indemnified Person in respect of such Person’s 's losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Costs, Expenses and Indemnity. (1) The Borrower Borrowers shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, trustees, advisors, employees and agents (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim Claim or loss Loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, ; (iiiii) any advice of counsel as to the exercise of the rights, powers and/or rights and duties of the Administrative Agent and/or and the Lenders with respect to the administration of the Credit FacilityFacilities, the Credit Documents or any transaction contemplated under the Credit Documents, ; (iviii) a default (whether or not constituting a Default or an Event of Default) by a Borrower hereunder and any enforcement proceedings relating to any of the Borrower, Credit Documents; (viv) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of performing its exercising or performing, or causing the exercise or performance of, any right, power or duty obligations under any of the Credit Documents Documents, providing any Accommodation or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement use of any Credit DocumentAccommodation by a Borrower, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; Person as determined in a non-appealable judgment rendered by a court of competent jurisdiction.
(2) The Borrowers shall indemnify and (vi) hold the presence of Indemnified Person harmless from and against any Contaminants at, on and all Environmental Liabilities and costs incurred or undersuffered by, or the discharge or likely discharge of any Contaminants fromasserted against, any of the Subject Properties Indemnified Persons (except for Environmental Liabilities and costs attributable to the gross negligence or wilful misconduct of an Indemnified Party as determined in a non-appealable judgment rendered by a court of competent jurisdiction) including all Environmental Liabilities and costs with respect to or as a direct or indirect result of, (i) the presence on or under or the release or likely release of Hazardous Substances from any properties now, or any time heretofore or hereafter, owned, leased, operated or used by SGC or any of the properties now its Subsidiaries; or previously used by the Credit Parties, or (ii) the breach by or non- compliance with any Environmental Law by any mortgagor, owner owner, or lessee of such propertiesproperties in their use of such properties of any Environmental Laws.
(23) If, with respect to any Finance Partyapplicable Lender, (i) any change in any law, rule, regulation, judgment or order of general application, Law or any change in the interpretation or application of such law, rule, regulation, judgment or order, any Law occurring or becoming effective after this date, the date hereof; or (ii) compliance by such Finance Party Lender with any direction, request or requirement (whether or not having the force of lawLaw) of any Governmental Entity (except where such compliance is in respect of any penalty or charges resulting from the failure to pay taxes) made or becoming effective after the datedate hereof, has the effect of causing any loss Loss to such Finance Party or reducing such Finance Party’s rate of return Lender by (wv) increasing the cost to such Finance Party Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in generalconnection therewith), (xw) requiring such Finance Party Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) Accommodations Outstanding or otherwise reducing any amount payable the effective return to such Finance Party Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (zx) reducing any amount payable to such Lender under this Agreement or in respect of any Accommodations Outstanding by any amount it deems material (other than a reduction resulting from a higher rate of income tax relating to such Lender’s income in general), (y) causing such Finance Party Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party Lender under this Agreement or in respect of any Accommodations Outstanding, then or (z) otherwise reducing the effective return to such Finance Party Lender under this Agreement or in respect of any Accommodations Outstanding or on its total capital as a result of entering into this Agreement, then, so long as such Lender is taking corresponding action under its other credit facilities comparable to the Credit Facilities, such Lender may give notice to the Borrower Borrowers specifying the nature of the event giving rise to the loss such Loss and the Borrower Borrowers may either, ; (iiii) on demand, pay such amounts as such Finance Party specifies is Lender may specify to be necessary to compensate it for any such loss Loss incurred after the date of such notice; or (iiiv) if such Finance Party is a Lender and provided no loss Loss has yet been suffered by such Finance Party Lender or the Borrower has Borrowers have paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding of such Lender and terminate such Lender’s Commitments. A certificate as to the amount of any such loss Loss, providing reasonable detail of the calculation of such Loss and stating that the Loss calculated therein is not otherwise reflected or recovered in the interest rate on which any Type of Accommodation is based and has been calculated on a like basis for transactions comparable to the transaction contemplated hereby and for a borrower comparable to each Borrower, submitted in good faith by such Finance Party Lender to the Borrower Borrowers shall be conclusive and binding for all purposes, absent manifest error. The Borrower may in its sole discretion prepay Accommodations Outstanding to any Lender that has made a claim pursuant to this Section 11.06(3) (such Lender herein called a “Claiming Lender”), together with amounts, if any, required to compensate such Claiming Lender to the date of such prepayment and such Claiming Lender shall, upon receipt of such prepayment, assign its Lender’s Commitment to one or more new financial institutions or existing Lenders which are (in the case of new financial institutions) acceptable to the Majority Lenders and which agree to assume the Lender’s Commitment of such Claiming Lender’s pursuant to the terms and conditions of an assignment and assumption agreement in the form of Schedule 9. The provisions of Section 11.08 shall apply to such assignment mutatis mutandis.
(34) The Borrower Borrowers shall pay to each Finance Party applicable Lender on demand any amounts required to compensate such Finance Party Lender for any loss suffered or incurred by it as a result of (i) any payment being made (due to acceleration of the maturity of an Accommodation pursuant to Article 9, a mandatory or optional prepayment of principal or otherwise) by a Borrower in respect of a BA Instrument, Documentary Credit or Advance, other than on the maturity or expiration or on the last day of a Eurodollar Interest Period applicable to it; (ii) the failure of a Borrower to give any notice in the manner and at the times required by this Agreement; (iii) the failure of a Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, ; or (iv) the failure of the a Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss Loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(45) The provisions of this Section 9.5 11.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Each Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Agent or any other Indemnified Person in respect of such Person’s losses Losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent and each of their respective officers, directors, employees and agents (each an “"Indemnified Person”") harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim Claim or loss Loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any of the Credit Documents or any action taken or omitted by any Indemnified Person under or in relation to any of the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, ; (iiiii) any advice of counsel as to the exercise of the rights, powers and/or rights and duties of the Administrative Agent and/or and the Lenders with respect to the administration of the Credit FacilityFacilities, the Credit Documents or any transaction contemplated under the Credit Documents, ; (iviii) a default (whether or not constituting a Default or an Event of Default) by the Borrower, Borrower or any Guarantor hereunder and any enforcement proceedings relating to any of the Credit Documents; (viv) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of performing its exercising or performing, or causing the exercise or performance of, any right, power or duty obligations under any of the Credit Documents Documents, providing any Accommodation or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement use of any Credit DocumentAccommodation by the Borrower, except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Person; .
(2) The Borrower shall indemnify and (vi) hold the presence of Indemnified Person harmless from and against any Contaminants at, on and all Environmental Liabilities and costs incurred or undersuffered by, or the discharge or likely discharge of any Contaminants fromasserted against, any of the Subject Properties Indemnified Persons (except for Environmental Liabilities and costs attributable to the gross negligence or wilful misconduct of an Indemnified Party) including all Environmental Liabilities and costs with respect to or as a direct or indirect result of, (i) the presence on or under or the release or likely release of Hazardous Substances from any properties now, or any time heretofore or hereafter, owned, leased, operated or used by the Borrower or any of the properties now Guarantors; or previously used by the Credit Parties, or (ii) the breach by or non- compliance with any Environmental Law by any mortgagor, owner owner, or lessee of such propertiesproperties in their use of such properties of any Environmental Laws.
(3) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraphs (1) or (2) of this Section 12.06 to be paid by it to the Administrative Agent, each Lender severally agrees to pay to the Administrative Agent such Lender's rateable share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent. The obligations of the Lenders under this paragraph (3) are subject to the other provisions of this Agreement concerning several liability of the Lenders.
(4) To the fullest extent permitted by applicable Law, the Borrower and the Guarantors shall not assert, and hereby waive, any claim against any Indemnified Person, on any theory of liability, for indirect, consequential, punitive, aggravated or exemplary damages (as opposed to direct damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby (or any breach thereof), the transactions contemplated hereby or thereby, any Accommodation or Documentary Credit or the use of the proceeds thereof. No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby.
(5) If, with respect to any Finance Partyapplicable Lender, (i) any change in any law, rule, regulation, judgment or order of general application, Law or any change in the interpretation or application of such law, rule, regulation, judgment or order, any Law occurring or becoming effective after this date, the date hereof; or (ii) compliance by such Finance Party Lender with any direction, request or requirement (whether or not having the force of lawLaw) of any Governmental Entity (except where such compliance is in respect of any penalty or charges resulting from the failure to pay taxes) made or becoming effective after the datedate hereof, has the effect of causing any loss Loss to such Finance Party or reducing such Finance Party’s rate of return Lender by (wv) increasing the cost to such Finance Party Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Party’s income or capital in generalconnection therewith), (xw) requiring such Finance Party Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any Outstandings, (y) Accommodations Outstanding or otherwise reducing any amount payable the effective return to such Finance Party Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (zx) reducing any amount payable to such Lender under this Agreement or in respect of any Accommodations Outstanding by any amount it deems material (other than a reduction resulting from a higher rate of income tax relating to such Lender's income in general), (y) causing such Finance Party Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party Lender under this Agreement or in respect of any Accommodations Outstanding, then or (z) otherwise reducing the effective return to such Finance Party Lender under this Agreement or in respect of any Accommodations Outstanding or on its total capital as a result of entering into this Agreement, then, so long as such Lender is taking corresponding action under its other credit facilities comparable to the Credit Facilities, such Lender may give notice to the Borrower specifying the nature of the event giving rise to the loss such Loss and the Borrower may either, ; (iiii) on demand, pay such amounts as such Finance Party specifies is Lender may specify to be necessary to compensate it for any such loss Loss incurred after the date of such notice; or (iiiv) if such Finance Party is a Lender and provided no loss Loss has yet been suffered by such Finance Party Lender or the Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding of such Lender and terminate such Lender’s 's Commitments. A certificate as to the amount of any such loss Loss, providing reasonable detail of the calculation of such Loss and stating that the Loss calculated therein is not otherwise reflected or recovered in the interest rate on which any Type of Accommodation is based and has been calculated on a like basis for transactions comparable to the transaction contemplated hereby and for a borrower comparable to the Borrower, submitted in good faith by such Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error. The Borrower may in its sole discretion prepay Accommodations Outstanding to any Lender that has made a claim pursuant to this Section 12.06(5) (such Lender herein called a "Claiming Lender"), together with amounts, if any, required to compensate such Claiming Lender to the date of such prepayment and such Claiming Lender shall, upon receipt of such prepayment, assign its Lender's Commitment to one or more new financial institutions or existing Lenders which are (in the case of new financial institutions) acceptable to the Required Lenders and which agree to assume the Lender's Commitment of such Claiming Lender's pursuant to the terms and conditions of an assignment and assumption agreement in the form of Schedule 9. The provisions of Section 12.08 shall apply to such assignment mutatis mutandis.
(36) The Borrower shall pay to each Finance Party applicable Lender on demand any amounts required to compensate such Finance Party Lender for any loss suffered or incurred by it as a result of (i) any payment being made (due to acceleration of the maturity of an Accommodation pursuant to Article 9, a mandatory or optional prepayment of principal or otherwise) by the Borrower in respect of a BA Instrument, Documentary Credit or Advance, other than on the maturity or expiration or on the last day of a Eurodollar Interest Period applicable to it; (ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement; (iii) the failure of the Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, ; or (iv) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss Loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(47) All amounts due under this Section 12.06 shall be payable promptly after demand therefor. A certificate of the Administrative Agent or a Lender setting forth the amount or amounts owing to the Administrative Agent or any Lender as specified in this Section 12.06, including reasonable detail of the basis of calculation of the amount or amounts, and delivered to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(8) The provisions of this Section 9.5 12.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s losses 's Losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
Samples: Credit Agreement (Marsulex Inc)
Costs, Expenses and Indemnity. (1) The Borrower shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold each of the Lenders and the Administrative Agent each Agent-Related Person and each of their respective officers, directors, employees employees, agents, trustees and agents advisors (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five Business Days of demand) on demand any amounts required to compensate the Indemnified Person for, any cost, expense, claim or loss suffered by, imposed on, or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) any the preparation, execution and delivery of the Credit Documents or any action taken or omitted by any Indemnified Person under or commitment letter, term sheet and fee letter executed in relation to any of connection with the Credit Documents except to the extent caused by the gross negligence or wilful misconduct of the Indemnified Party; Facilities, (ii) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, the Credit Documents and any related amendment, waiver or consent, ; (iii) any advice of counsel as to the exercise of the rights, powers and/or rights and duties of the Administrative Agent and/or and the Lenders with respect to the administration of the Credit FacilityFacilities, the Credit Documents or any transaction contemplated under the Credit Documents, including any interpretation issues; (iv) a default (whether or not constituting a Default or an Event of Default) by the Borrower, ; (v) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party of any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or duty under any of the Credit Documents or otherwise in connection with and performing its interest in any Security, whether or not such proceedings are directly related to obligations under the enforcement of any Credit Document, Documents except to the extent caused that it shall be determined in a final, non-appealable judgment by a court of competent jurisdiction that such losses, claims, damages, liabilities or expenses resulted primarily from the gross negligence or wilful misconduct intentional fault of the Indemnified Person; and (vi) the presence of any Contaminants at, on or under, under or the discharge or likely discharge of any Contaminants from, any of the Subject Properties or Hazardous Substances from any of the properties now or previously used by the Credit PartiesBorrower, or the breach by or non- compliance with of any Environmental Law by the Borrower or by any mortgagor, owner owner, or lessee of such properties. No Indemnified Person shall be liable for any damages arising from the use by others of information provided by or on behalf of the Borrower and obtained through the Internet, Intralinks or other similar information transmission systems in connection with the Credit Facilities except to the extent that, as to any Indemnified Person, it shall be determined by a final, non-appealable judgment by a court of competent jurisdiction that such damages resulted primarily from the gross or intentional fault of such Indemnified Person. The Borrower agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to any Person, including the Borrower, any of its Subsidiaries and Affiliates or their respective security holders or creditors arising out of or in connection with any aspect of this Agreement or the Credit Facilities, except for direct, as opposed to consequential, damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from the gross or intentional fault of such Indemnified Person.
(2) If, with respect to any Finance PartyLender, (i) any change Change in any law, rule, regulation, judgment or order Law of general application, or any change in the interpretation or application of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, the Closing Date; or (ii) compliance by such Finance Party the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the dateClosing Date, has the effect of causing any loss to such Finance Party the Lender or reducing such Finance Partythe Lender’s rate of return by (w) increasing the cost to such Finance Party the Lender of performing its obligations under this Agreement or in respect of any Outstandings Accommodations Outstanding (including the costs of maintaining any capital, reserve or special deposit requirements but (other than a reduction resulting from a higher rate or from a change in the calculation of income or capital tax relating to such Finance Partythe Lender’s income or capital in general)), (x) requiring such Finance Party the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under this Agreement or in respect of any OutstandingsAccommodations Outstanding, (y) reducing any amount payable to such Finance Party the Lender under this Agreement or in respect of any OutstandingsAccommodations Outstanding by any material amount, (z) causing such Finance Party the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by such Finance Party the Lender under this Agreement or in respect of any Accommodations Outstanding, then such Finance Party then, subject to Section 12.06(3), the Lender may give notice to the Borrower specifying specifying, with reasonable detail, the nature of the event giving rise to the loss and the Borrower may either, : (iA) on demand, pay such amounts as such Finance Party the Lender specifies is necessary to compensate it for any such loss loss, or (iiB) if such Finance Party is a Lender and provided no loss has yet been suffered by such Finance Party the Lender or the Borrower has paid the compensating amount to such Finance Partythe Lender, repay the Outstandings Accommodations Outstanding to such Lender and terminate such the Lender’s CommitmentsCommitments all without affecting the Commitments or Accommodations Outstanding of any other Lender. A certificate as to the amount of any such loss submitted in good faith by such Finance Party a Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(3) The Borrower shall not be liable to compensate a Lender for any costs, reduction, payment or foregone return if such compensation is not being claimed as a general practice by such Lender from customers of such Lender who by agreement are liable to pay such or similar compensation. In determining the amount of compensation payable by the Borrower under Section 12.06(2), such Lender shall use all reasonable efforts to minimize the compensation payable by the Borrower including using all reasonable efforts to obtain refunds or credits in the ordinary course of its business, and any compensation paid by the Borrower which is later determined not to have been properly payable or in respect of which a refund, credit or compensation has been received shall forthwith be reimbursed by such Lender to the Borrower.
(4) The Borrower shall pay to each Finance Party Lender on demand any amounts required to compensate such Finance Party the Lender for any loss suffered or incurred by it as a result of (i) any payment being made in respect of a BA Instrument or Libor Advance other than on the maturity applicable to it; (ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement; (iii) the failure of the Borrower to effect an Advance Accommodation in the manner and at the time specified in any Borrowing Accommodation Notice, ; or (iv) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by a Finance Party Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error.
(45) The provisions of this Section 9.5 12.06 shall survive the termination of this Agreement and the repayment of all OutstandingsAccommodations Outstanding. The Borrower acknowledges that neither its obligation to indemnify nor any actual indemnification by it of any Finance Party Lender, the Administrative Agent or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel.
Appears in 1 contract
