Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4. In addition, the Borrower shall pay any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes. (b) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct): (i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit; (ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents; (iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or (iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons. (c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 3 contracts
Samples: Credit Agreement (Alliant Energy Corp), Credit Agreement (Alliant Energy Corp), Credit Agreement (Alliant Energy Corp)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), includingall the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and each of the Joint Arrangers Lenders with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender or Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender or Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender or Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Lender promptly repay the amount of such overpayment. Any determination made by such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Administrative Agent, counsel to the Administrative Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderpartners, each LC Issuing Bank employees, Affiliates and each Related Party of any of the foregoing Persons advisors (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance Advance, except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the use by gross negligence or willful misconduct of the Borrower or any beneficiary party seeking indemnification.
(i) Without prejudice to the survival of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 2 contracts
Samples: Credit Agreement (Progress Energy Inc), Credit Agreement (Progress Energy Inc)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lenderexpenses), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Adjusted CD Rate Advance, Eurodollar Rate Advance or B Advance is made other than on the last day of the Interest Period for such A Advance or other than on the maturity date of such B Advance, as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderemployees, each LC Issuing Bank professional advisors and each Related Party of any of the foregoing Persons affiliates (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
): (i) by reason of or resulting from in connection with the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter Extension of Credit;
; (ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;
; (iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (Ai) at, upon, or under any property of the Borrower or any of its Affiliates or (Bii) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
or (iv) by reason of or in connection with the Merger or resulting from the use by unintended recipients any of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsMerger Agreement.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders under the Notes and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Ies Utilities Inc), Credit Agreement (Ies Utilities Inc)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank Agent and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.08(f), 2.09, 2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderemployees, each LC Issuing Bank professional advisors and each Related Party of any of the foregoing Persons affiliates (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of CreditAdvance;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Energy Corp), Credit Agreement (Alliant Energy Corp)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.4(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.9(f), Section 2.10, Section 2.11 or Section 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.1 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance Substance
(A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.4 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 are unenforceable for any reason, the Borrower agrees to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Interstate Power & Light Co), Credit Agreement (Interstate Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”"INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Energy Corp), Credit Agreement (Wisconsin Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Energy Corp), Credit Agreement (Alliant Energy Corp)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.4(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.6(d), Section 2.10(f), Section 2.11, Section 2.12 or Section 2.14 or acceleration of the maturity of the Advances pursuant to Section 6.1 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint ArrangersAgent, the Swingline Lender, each the LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely mannermanner (it being agreed that Xxxxx & Xxxxxxx LLP shall be deemed to be reasonably satisfactory counsel for such purpose), (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest inappropriate or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person maymany, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.4 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 are unenforceable for any reason, the Borrower agrees to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Energy Corp), Credit Agreement (Interstate Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Administrative Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lenderexpenses), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or B Advance is made other than on the last day of the Interest Period for such A Advance or other than on the maturity date of such B Advance, as a result of a payment or Conversion pursuant to Section 2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Administrative Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderemployees, each LC Issuing Bank professional advisors and each Related Party of any of the foregoing Persons affiliates (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from in connection with the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter Extension of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (Ai) at, upon, or under any property of the Borrower or any of its Affiliates or (Bii) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders under the Notes and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Commonwealth Edison Co), Credit Agreement (Commonwealth Edison Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.4(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.10(f), Section 2.11, Section 2.12 or Section 2.14 or acceleration of the maturity of the Advances pursuant to Section 6.1 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint ArrangersAgent, the Swingline Lender, each the LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely mannermanner (it being agreed that Xxxxx & Xxxxxxx LLP shall be deemed to be reasonably satisfactory counsel for such purpose), (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest inappropriate or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.4 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 are unenforceable for any reason, the Borrower agrees to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Energy Corp), Credit Agreement (Interstate Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower Company agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiationpreparation, execution, delivery, administration, modification and amendment of this Agreement and the other Loan Documents, Related Documents and the other documents and instruments to be delivered hereunder and thereunderunder the Related Documents, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Administrative Agent as to its rights and responsibilities under, this Agreement and under the other Loan Related Documents. The Borrower Company further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of each Bank, including the Agent, each LC Issuing Bank and each Lenderallocated costs of staff counsel), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Related Documents and the other documents and instruments to be delivered hereunder and thereunderunder the Related Documents, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.04. In addition, the Borrower Company shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution execution, delivery, filing and delivery recording of this Agreement and the other Loan Documents, Related Documents and the other documents and instruments to be delivered hereunder and thereunderunder the Related Documents, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender Bank harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) The Borrower Company hereby agrees to indemnify and hold each Lenderthe Administrative Agent and the Banks and their respective officers, the Agent (directors, employees, professional advisors and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons affiliates (each, an “Indemnified Person”"INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or investigation or is otherwise subjected to judicial or legal process arising from any such proceedingproceeding or investigation) which any of them may incur or which may be claimed against any of them by any Person including the Borrower person or entity (except for to the extent such claims, damages, losses, liabilities, costs and or expenses resulting arise from such Indemnified Person’s the gross negligence or willful misconductmisconduct of the Indemnified Person):
(i) by reason of or resulting from in connection with the execution, delivery or performance of any of the Loan Related Documents or any transaction contemplated thereby, or the use by the Borrower Company or any Remarketing Agent of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;Advance; or
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery any inaccuracy or alleged inaccuracy in any material respect, or any untrue statement or alleged untrue statement of any of material fact, contained in any registration statement relating to the Loan Documents;
(iii) Notes or in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of Prospectus relating to the Borrower Notes or any of its Affiliates amendment or (B) supplement thereto, except to the extent contained in or arising from information in the Prospectus relating to the Notes supplied in writing by or on behalf of and describing the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement Administrative Agent or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsBanks.
(c) To The Company's obligations under this Section 9.04 shall survive the repayment of all amounts owing to the Administrative Agent and the Banks under the Related Documents and the termination of the Commitments. If and to the extent that the Borrower obligations of the Company under this Section 9.04 are unenforceable for any reason fails reason, the Company agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 2 contracts
Samples: Standby Note Purchase Credit Facility (Detroit Edison Co), Standby Note Purchase Credit Facility (Detroit Edison Co)
Costs, Expenses, Taxes and Indemnification. (a) The Each Borrower agrees agrees, severally and not jointly, to pay on demand its Applicable Share of all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents, all subject to the Applicable Percentage described in the Fee Letters for fees incurred in connection with the initial closing of the transactions described herein. The Each Borrower further agrees to pay on demand its Applicable Share of all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunderthereunder (unless such cost or expense is attributable to a specific Borrower, in which case such Borrower shall be solely liable for such amount), including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4. In addition, the each Borrower shall pay its Applicable Share of any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay by such Borrower in paying or omission to pay such Other Taxes.. This Section 8.4(a) shall not apply with respect to Taxes or Excluded Taxes other than any Taxes or Excluded Taxes that represent liabilities arising from any non-Tax or non-Excluded Tax claim. 89
(b) The Borrower Each Borrower, severally and not jointly, hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the any Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct, a material breach of such Indemnified Person’s obligations hereunder or under any other Loan Document, each as determined in a final and nonappealable judgment by a court of competent jurisdiction or any dispute solely among Indemnified Persons (not arising from any act or omission of a Borrower) other than claims against an Indemnified Person acting in its capacity as, or in fulfilling its role as, the Agent or Joint-Arrangers under this Agreement or the other Loan Documents) in each case to the extent of such Borrower’s Applicable Share (unless attributable to a specific Borrower, in which case such Borrower shall be solely liable):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the such Borrower of the proceeds of any Advance or the use by the such Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the such Borrower or any of its Affiliates or (B) by or on behalf of the such Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak the Platform or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. 90 In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the applicable Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the such Borrower will not relieve the such Borrower from any liability that the such Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the such Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the such Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the such Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the such Borrower. If the a Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the such Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the applicable Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the such Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the no Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsPersons and, in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Person(s) selected and retained by such Indemnified Person(s).
(c) To the extent that the any Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such LenderXxxxxx’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such sub-agent), such LC Issuing Bank or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent), any LC Issuing Bank or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.3(b). 91
(d) Each Borrower will compensate each Lender upon demand for its Applicable Share of all losses, reasonable and documented expenses and liabilities (including, without limitation, any loss, reasonable and documented expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund or maintain SOFR Advances) that such Lender may incur or sustain (unless attributable to a specific Borrower, in which case such Borrower shall be solely liable)
(i) if for any reason (other than a default by such Lender) a Borrowing or continuation of, or Conversion into, a SOFR Advance does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion, (ii) if any repayment, prepayment or Conversion of any SOFR Advance occurs on a date other than the last day of an Interest Period applicable thereto (including as a consequence of any assignment made pursuant to Section 2.21 or any acceleration of the maturity of the Advances pursuant to Section 6.1), (iii) if any prepayment of any SOFR Advance is not made on any date specified in a notice of prepayment given by such Borrower or (iv) as a consequence of any other failure by such Borrower to make any payments with respect to any SOFR Advance when due hereunder. A certificate (which shall be in reasonable detail) of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be submitted by such Lender to the applicable Borrower either directly or through the Agent and shall be conclusively presumed to be correct save for manifest error. The obligations of each Borrower under this Section 8.4
Appears in 1 contract
Samples: Five Year Master Credit Agreement (Wisconsin Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Each Borrower agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent, the Arranger, the Documentation Agent and the Joint Arrangers Managing Agents in connection with the preparation (including, without limitation, printing costs), syndication, negotiationpreparation, execution, delivery, modification delivery and amendment administration of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderany amendment or waiver with respect thereto, includinglimited, without limitationin the case of counsel, to the reasonable fees and out documented fees, disbursements and other charges of pocket expenses of (i) one common counsel, (ii) reasonable and necessary local counsel for the Agent (limited to one such counsel in each jurisdiction) and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents(iii) one specialist counsel in any applicable specialty. The Each Borrower further agrees to pay on demand all costs reasonable and expenses, if any documented out-of-pocket expenses of the Administrative Agent and the Banks (including, without limitation, the reasonable and documented fees, disbursements and other charges of (i) common counsel, (ii) reasonable and necessary local counsel fees (limited to one such counsel in each jurisdiction), (iii) one specialist counsel in any applicable specialty and expenses (iv) solely in the case of the Agentan actual or potential conflict of interest, of one additional counsel (and if reasonable and necessary, one local counsel plus one specialist counsel in, respectively, each LC Issuing Bank and each Lender)jurisdiction or applicable specialty) to the affected indemnitee, in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4hereunder. In addition, the each Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, Administrative Agent and each LC Issuing Bank and each Lender their Affiliates harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) The If any payment of principal of, or Conversion of, any Eurodollar Rate Loan of any Borrower is made other than on the last day of the Interest Period for such Eurodollar Rate Loan, as a result of a payment or Conversion pursuant to Section 2.09(d), 2.11 or 2.13 hereof, or any acceleration of the maturity of the Loans of any Borrower pursuant to Section 6.01 hereof or if any Borrower fails to borrow or Convert (including, without limitation, failure to borrow or Convert resulting from any failure to fulfill on the date specified for such Borrowing or Conversion the applicable conditions set forth in Article III hereof) in accordance with notices delivered pursuant to Section 2.02 or 2.10 hereof or for any other reason, such Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (but excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Rate Loan.
(c) Each Borrower hereby agrees to indemnify and hold each Lenderharmless the Arranger, the Agent (and any sub-agent thereof)Documentation Agent, the Joint ArrangersManaging Agents, each Bank, the Swingline LenderAdministrative Agent and their respective officers, each LC Issuing Bank directors, employees, Affiliates, agents and each Related Party of any of the foregoing Persons advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable and documented attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceedingproceeding and whether or not such proceeding is brought by such Borrower or any of its Affiliates or any of their respective directors, securityholders or creditors, an Indemnified Person or any other Person) which that any of them may incur or which may be claimed against any of them by any Person:
(i) by reason of or in connection with the execution, delivery, or performance of this Agreement and the other Loan Documents, or the use by such Borrower of the proceeds of any Loan, except with respect to any Indemnified Person including to the Borrower (except for extent that such claims, damages, losses, liabilities, costs and costs, or expenses resulting (A) are found by a final, non-appealable judgment of a court of competent jurisdiction to arise from (1) the gross negligence, bad faith or willful misconduct of such Indemnified Person or (2) a material breach of such Indemnified Person’s gross negligence obligations under this Agreement or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the other Loan Documents or any transaction contemplated thereby, (B) arise from a dispute solely among Indemnified Persons that does not involve an act or the use omission by the Borrower of the proceeds of any Advance or the use by the either Borrower or any beneficiary of any Letter of Credit of their respective Affiliates and are not brought against such Letter of Credit;Indemnified Person in such capacity as an agent or arranger or similar role under the transactions contemplated by this Agreement; and
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release release, or ownership of any Hazardous Substance Material (A) at, upon, or under any property of the such Borrower or any of its Affiliates or (B) by or on behalf of the such Borrower or any of its Affiliates at any time and in any place; or.
(ivd) in connection with or resulting Each Borrower’s obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Banks and the Administrative Agent hereunder and the termination of the Commitments. If and to the extent that the obligations of any Borrower under this Section 8.04 are unenforceable for any reason, such Borrower agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law.
(e) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnified Person (i) for any damages arising from the use by unintended recipients of any information or other materials distributed by it obtained through the internettelecommunications, SyndTrak electronic or other similar information transmission systems (including the Internet) arising out of, in connection with with, or as a result of, this Agreement or the other any transaction, agreement or instrument contemplated hereby, any Loan Documents or the transactions contemplated hereby use or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower intended use of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewithproceeds thereof, unless (isuch unintended recipient(s) the Borrower has failed to provide counsel reasonably satisfactory to obtained such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual information or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than materials as a result of monetary damages for which it would be entitled to indemnification hereunderthe gross negligence, such bad faith or willful misconduct of an Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromisePerson, or settle such action (ii) on any theory of liability, for special, indirect, consequential or proceedingpunitive damages (as opposed to direct or actual damages) arising out of, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action in connection with, or proceeding so defended as a result of, this Agreement or any compromise transaction, agreement or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof)instrument contemplated hereby, any LC Issuing Bank, any Swingline Lender Loan or any Related Party of any the use or intended use of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchproceeds thereof.
Appears in 1 contract
Samples: 364 Day Bridge Term Loan Agreement (Uil Holdings Corp)
Costs, Expenses, Taxes and Indemnification. (a) The Each Borrower agrees agrees, severally and not jointly, to pay on demand its Applicable Share of all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents, all subject to the Applicable Percentage described in the Active Joint Arrangers Fee Letter for fees incurred in connection with the initial closing of the transactions described herein. The Each Borrower further agrees to pay on demand its Applicable Share of all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunderthereunder (unless such cost or expense is attributable to a specific Borrower, in which case such Borrower shall be solely liable for such amount), including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4. In addition, the each Borrower shall pay its Applicable Share of any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay by such Borrower in paying or omission to pay such Other Taxes. This Section 8.4(a) shall not apply with respect to Taxes or Excluded Taxes other than any Taxes or Excluded Taxes that represent liabilities arising from any non-Tax or non-Excluded Tax claim.
(b) The Borrower Each Borrower, severally and not jointly, hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the any Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct, or a material breach of such Indemnified Person’s obligations hereunder or under any other Loan Document, each as determined in a final and nonappealable judgment by a court of competent jurisdiction) in each case to the extent of such Borrower’s Applicable Share (unless attributable to a specific Borrower, in which case such Borrower shall be solely liable):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the such Borrower of the proceeds of any Advance or the use by the such Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the such Borrower or any of its Affiliates or (B) by or on behalf of the such Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the applicable Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the such Borrower will not relieve the such Borrower from any liability that the such Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the such Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the such Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the such Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the such Borrower. If the a Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the such Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the applicable Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the such Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the no Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsPersons and, in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Person(s) selected and retained by such Indemnified Person(s).
(c) To the extent that the any Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such sub-agent), such LC Issuing Bank or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent), any LC Issuing Bank or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.3
Appears in 1 contract
Samples: Master Credit Agreement (Wisconsin Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers Arranger in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for each of the Agent and the Joint Arrangers Arranger with respect thereto and with respect to the administration of, and advising the Agent and the Arranger as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank the Arranger and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank the Arranger and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.08(f), 2.09, 2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender, as the case may be, any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderemployees, each LC Issuing Bank professional advisors and each Related Party of any of the foregoing Persons affiliates (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower Parent or any of its Subsidiaries of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of CreditAdvance;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower Parent or any of its Affiliates or (B) by or on behalf of the Borrower Parent or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 9.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 9.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Each Borrower agrees to pay on demand all reasonable costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiationpreparation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and the Joint Arrangers each LC Bank with respect thereto and with respect to the administration of, and advising the Administrative Agent as to its rights and responsibilities under, under this Agreement and the other Loan Documents. The Each Borrower further agrees to pay on demand all costs and expensesexpenses of the Administrative Agent, the Banks and the XX Xxxxx, if any (including, without limitation, reasonable counsel fees and expenses of counsel for the Agent, Administrative Agent and counsel for each LC Issuing Bank and each LenderLC Bank), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunderhereunder, including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, the Banks and the XX Xxxxx in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the each Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the AgentAdministrative Agent and each Bank, each LC Issuing Bank and each Lender their Affiliates harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) The If any payment of principal of, or Conversion of, any Eurodollar Rate Advance of any Borrower is made other than on the last day of the Interest Period for such Eurodollar Rate Advance, as a result of a payment or Conversion pursuant to Section 2.09(d), 2.11 or 2.13 hereof, or any acceleration of the maturity of the Advances of any Borrower pursuant to Section 6.01 hereof or if any Borrower fails to borrow or Convert (including, without limitation, failure to borrow or Convert resulting from any failure to fulfill on the date specified for such Borrowing or Conversion the applicable conditions set forth in Article III hereof) in accordance with notices delivered pursuant to Section 2.02 or 2.10 hereof or for any other reason, such Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Rate Advance.
(c) Each Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline LenderBank, each LC Issuing Bank Bank, the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceedingproceeding and whether or not such proceeding is brought by such Borrower or any of its Affiliates or any of their respective directors, securityholders or creditors, an Indemnified Person or any other Person) which that any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct)::
(i) by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the such Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;; and
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release release, or ownership of any Hazardous Substance Material (A) at, upon, or under any property of the such Borrower or any of its Affiliates or (B) by or on behalf of the such Borrower or any of its Affiliates at any time and in any place; or.
(ivd) in connection with or resulting Each Borrower’s obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Banks, the LC Bank and the Administrative Agent hereunder and the termination of the Commitments and the expiry of all Letters of Credit. If and to the extent that the obligations of any Borrower under this Section 8.04 are unenforceable for any reason, such Borrower agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law.
(e) To the extent permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnified Person (i) for any damages arising from the use by unintended recipients of any information or other materials distributed by it obtained through the internettelecommunications, SyndTrak electronic or other similar information transmission systems (including the Internet) arising out of, in connection with with, or as a result of, this Agreement or the other Loan Documents any transaction, agreement or instrument contemplated hereby, any Advance or any Letter of Credit or the transactions contemplated hereby use or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower intended use of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewithproceeds thereof, unless (isuch unintended recipient(s) the Borrower has failed to provide counsel reasonably satisfactory to obtained such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual information or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than materials as a result of monetary damages for which it would be entitled to indemnification hereunder, such the gross negligence or willful misconduct of an Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromisePerson, or settle such action (ii) on any theory of liability, for special, indirect, consequential or proceedingpunitive damages (as opposed to direct or actual damages) arising out of, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action in connection with, or proceeding so defended as a result of, this Agreement or any compromise transaction, agreement or settlement effected without its consent (which may not be unreasonably withheld). In connection with instrument contemplated hereby, any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (Advance or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender Letter of Credit or any Related Party of any the use or intended use of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchproceeds thereof.
Appears in 1 contract
Samples: Credit Agreement (Uil Holdings Corp)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement or protection of the rights and remedies of the Lenders and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), includingall the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and each of the Joint Arrangers Lenders with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender or the Administrative Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Lender promptly repay the amount of such overpayment. Any determination made by such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline LenderSyndication Agent, each LC Issuing Bank the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which , and regardless of whether brought by a third party or by the Borrower or any Subsidiary of them the Borrower), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance Borrowing, except to the extent that such claims, damages, losses, liabilities, costs, or expenses (i) are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the use gross negligence or willful misconduct of the party seeking indemnification or (ii) result from a claim brought by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property Subsidiary of the Borrower or any against an Indemnified Person for breach in bad faith of its Affiliates or (B) by or on behalf of such Indemnified Person’s obligations hereunder, if the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related PartySubsidiary, as the case may be, has obtained a final nonappealable judgment in its favor on such Lender’s pro rata share (claim as determined as by a court of competent jurisdiction. The Borrower also agrees not to assert any claim against any Indemnified Party on any theory of liability for special or punitive damages arising out of or otherwise relating to this Agreement, any of the time that transactions contemplated herein or the applicable unreimbursed expense actual or indemnity proposed use of the proceeds of any Borrowing.
(i) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 8.04 shall survive the payment is sought based on each Lender’s Credit Exposure at such time) in full of such unpaid amount (including any such unpaid amount in respect principal and interest hereunder and the termination of a claim asserted by such Lender); 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 Agent (or any suchCommitments.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, including reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lenderexpenses), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunderhereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4hereunder. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments Documents to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes.
(b) The taxes. In addition, the Borrower hereby agrees to indemnify and hold each the Lender, the Agent its officers, directors, employees, representatives and agents (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and hold each of them harmless against any and all claims, damages, losses, liabilities, costs claims, damages or expenses (including reasonable attorney’s fees and expensescollectively “Indemnified Liabilities”) incurred by any of them (whether asserted by the Borrower or otherwise) as a result of, or arising out of, or in any way related to, or by reason of, any investigation, litigation or other proceeding (whether or not such Indemnified Person the Lender is named as a party thereto) related to the entering into and/or performance of any proceeding Loan Document or is otherwise subjected to judicial the use of the proceeds of the Loans or legal process arising from the consummation of any transactions contemplated in any Loan Document, including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any such proceeding) which investigation, litigation or other proceeding (but excluding any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and claims, damages or expenses resulting from such Indemnified Person’s to the extent incurred by reason of the gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any misconduct of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheldindemnified). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(c) To the extent that the undertaking to indemnify, pay or hold harmless the Lender set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it shall make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party payment and satisfaction of any each of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the indemnified liabilities which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of CreditCredit ;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders and each Issuing Bank) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders, includingeach Issuing Bank and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), all the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, each LC Issuing Bank and each Lender), in connection of the Lenders with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4respect thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Administrative Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender, each Issuing Bank and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender, such Issuing Bank or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender, any Issuing Bank or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender, such Issuing Bank or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender, each Issuing Bank and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender, such Issuing Bank or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender, such Issuing Bank or the Administrative Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, or on the date that any Eligible Assignee becomes an Additional Lender pursuant to Section 2.04(b) and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Issuing Bank or any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Issuing Bank or such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Issuing Bank or such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Issuing Bank or such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Issuing Bank or such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Issuing Bank or such Lender promptly repay the amount of such overpayment. Any determination made by such Issuing Bank or such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Issuing Bank or any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Issuing Bank or any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof)each Issuing Bank, the Joint Arrangers, the Swingline LenderSyndication Agent, each LC Issuing Bank the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance or the use Extension of Credit (including any refusal by the Borrower or any beneficiary of any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit;
(ii) ), except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in connection with any documentary taxes, assessments a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or charges made by any Governmental Authority by reason willful misconduct of the execution and delivery party seeking indemnification. The Borrower also agrees not to assert any claim against any Indemnified Party on any theory of liability for special or punitive damages arising out of or otherwise relating to this Agreement, any of the Loan Documents;transactions contemplated herein or the actual or proposed use of the proceeds of any Extension of Credit.
(iiii) in connection with or resulting from Without prejudice to the utilization, storage, disposal, treatment, generation, transportation, release or ownership survival of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all reasonable and documented costs and expenses of the Agent and the Joint Arrangers Arranger in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable and documented fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers Arranger with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all reasonable and documented costs and expenses, if any (including, without limitation, reasonable and documented counsel fees and expenses of the Agent, each LC Issuing Bank Agent and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable and documented counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.4. In addition, the Borrower shall pay any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes. This Section 9.4(a) shall not apply with respect to Taxes or Excluded Taxes other than any Taxes or Excluded Taxes that represent liabilities arising from any non-Tax or non-Excluded Tax claim.
(b) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank Arranger and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them them, whether based on contract, tort or any other theory, by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct, or material breach of such Indemnified Person’s obligations hereunder or under any other Loan Document, each as determined in a final and nonappealable judgment by a court of competent jurisdiction):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of CreditAdvance;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower any Loan Party or any of its Affiliates or (B) by or on behalf of the Borrower any Loan Party or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak Intralinks or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsPersons and, in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Person(s) selected and retained by such Indemnified Person(s).
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 9.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender ) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender ) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), includingall the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and each of the Joint Arrangers Lenders with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender or Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender or Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender or Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Lender promptly repay the amount of such overpayment. Any determination made by such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Administrative Agent, counsel to the Administrative Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderpartners, each LC Issuing Bank employees, Affiliates and each Related Party of any of the foregoing Persons advisors (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which ), joint and several, that may be claimed incurred by or asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance Advance, except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the use by gross negligence or willful misconduct of the Borrower or any beneficiary party seeking indemnification.
(i) Without prejudice to the survival of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11 or 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified "INDEMNIFIED Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.4(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.5(d), Section 2.9(f), Section 2.10, Section 2.11 or Section 2.13 or acceleration of the maturity of the Advances pursuant to Section 6.1 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)Agent, the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.4 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 are unenforceable for any reason, the Borrower agrees to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all reasonable and documented costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable and documented fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers Arranger with respect thereto and with respect to the administration of, and advising the Agent and the Arranger as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all reasonable and documented costs and expenses, if any (including, without limitation, reasonable and documented counsel fees and expenses of the Agent, each LC Issuing Bank the Arranger and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable and documented counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.4. In addition, the Borrower shall pay any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank the Arranger and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes. This Section 9.4(a) shall not apply with respect to Taxes or Excluded Taxes other than any Taxes or Excluded Taxes that represent liabilities arising from any non-Tax or non-Excluded Tax claim.
(b) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank Arranger and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them them, whether based on contract, tort or any other theory, by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct, or claimed against such Indemnified Person by the Borrower related to a material breach of such Indemnified Person’s obligations hereunder or under any other Loan Document, each as determined in a final and nonappealable judgment by a court of competent jurisdiction):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of CreditAdvance;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower any Loan Party or any of its Affiliates or (B) by or on behalf of the Borrower any Loan Party or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak Intralinks or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. 55 In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsPersons and, in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Person(s) selected and retained by such Indemnified Person(s).
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 9.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender the Arranger or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender the Arranger or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such sub-agent) in its capacity as such, the Arranger or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.3
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower absolutely and unconditionally agrees to pay on demand all costs and expenses to the Agent, for the respective pro rata account of the Agent and each Lender, upon demand by Agent or any Lender at any time and as often as the Joint Arrangers occasion therefor may require, whether or not all or any of the transactions contemplated by any of the Loan Documents are ultimately consummated (i) all reasonable out-of-pocket costs and expenses which shall at any time be incurred or sustained by Agent or any of its directors, officers, employees or agents as a consequence of, on account of, in relation to or any way in connection with the preparation (includingpreparation, without limitationnegotiation, printing costs)execution and delivery of the Loan Documents and the perfection and continuation of the rights of the Lenders and Agent in connection with the Loans, syndicationas well as the preparation, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), or delivery or in connection with the enforcement and workout (whether through negotiations, legal proceedings amendment or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4. In addition, the Borrower shall pay any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes.
(b) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance modification of any of the Loan Documents or as a consequence of, on account of, in relation to or any transaction contemplated thereby, way in connection with the granting by Agent or the use by the Borrower any of the proceeds Lenders of any Advance consents, approvals or waivers under any of the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
Loan Documents including, but not limited to, reasonable attorneys' fees and disbursements; and (ii) all reasonable out-of-pocket costs and expenses which shall be incurred or sustained by Agent or any of the Lenders or any of their directors, officers, employees or agents as a consequence of, on account of, in relation to or any way in connection with the exercise, protection or enforcement (whether or not suit is instituted) any of its rights, remedies, powers or privileges under any of the Loan Documents or in connection with any documentary taxeslitigation, assessments proceeding or charges made by dispute in any Governmental Authority by reason respect related to any of the execution and delivery of relationships under, or any of the Loan Documents;
Documents (iii) in connection with or resulting from the utilizationincluding, storagebut not limited to, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property all of the Borrower reasonable fees and disbursements of consultants, legal advisers, accountants, experts and agents for Agent or any of its Affiliates the Lenders, the reasonable travel and living expenses away from home of employees, consultants, experts or (B) by agents of Agent or any of the Lenders, and the reasonable fees of agents, consultants and experts not in the full-time employ of Agent or any of the Lenders for services rendered on behalf of the Borrower Agent or any of its Affiliates the Lenders).
(b) Borrower shall absolutely and unconditionally indemnify and hold harmless Agent and each Lender against any and all claims, demands, suits, actions, causes of action, damages, losses, settlement payments, obligations, costs, expenses and all other liabilities whatsoever except for claims arising out of or related to the gross negligence or wilful misconduct of Agent or any Lender which shall at any time and or times be incurred or sustained by Agent or any Lender or by any of their shareholders, directors, officers, employees, subsidiaries, Affiliates or agents on account of, or in relation to, or in any place; or
(iv) way in connection with, any of the arrangements or transactions contemplated by, associated with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with ancillary to this Agreement or any of the other Loan Documents Documents, whether or not all or any of the transactions contemplated hereby by, associated with or thereby. In case ancillary to this Agreement, or any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which Loan Documents are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Personsultimately consummated.
(c) To the extent Borrower hereby covenants and agrees that the Borrower any sums expended by Agent or any Lender which Agent or any Lender is entitled to be reimbursed for any reason fails pursuant to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to 11.5, shall be paid immediately due and payable upon demand by it to the Agent (or any sub-agent thereof)Lender, any LC Issuing Bank, any Swingline Lender or any Related Party of any of and shall bear interest at the foregoing, each Lender severally agrees to pay to Default Interest Rate from the date Agent (or any such sub-agent), Lender incurred such LC Issuing Bank, expense until the date such Swingline Lender payment is made in full to Agent or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lenderexpenses), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Adjusted CD Rate Advance, Eurodollar Rate Advance or B Advance is made other than on the last day of the Interest Period for such A Advance or other than on the maturity date of such B Advance, as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderemployees, each LC Issuing Bank professional advisors and each Related Party of any of the foregoing Persons affiliates (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from in connection with the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter Extension of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (Ai) at, upon, or under any property of the Borrower or any of its Affiliates or (Bii) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders under the Notes and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Samples: Credit Agreement (Ies Utilities Inc)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Lenders and the Joint Arrangers Issuing Bank) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders, includingthe Issuing Bank and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), all the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, each LC the Issuing Bank and each Lender), in connection of the Lenders with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4respect thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Administrative Agent, each LC the Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender, the Issuing Bank and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender, the Issuing Bank or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender, the Issuing Bank or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender, the Issuing Bank or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender, the Issuing Bank and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender, the Issuing Bank or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender, the Issuing Bank or the Administrative Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to the Issuing Bank or any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and the Issuing Bank or such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), the Issuing Bank or such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as the Issuing Bank or such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If the Issuing Bank or such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of the Issuing Bank or such Lender promptly repay the amount of such overpayment. Any determination made by the Issuing Bank or such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring the Issuing Bank or any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of the Issuing Bank or any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof)Issuing Bank, the Joint Arrangers, the Swingline LenderSyndication Agent, each LC Issuing Bank the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance or the use Extension of Credit (including any refusal by the Borrower or any beneficiary of any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit;
(ii) ), except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in connection with any documentary taxes, assessments a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or charges made by any Governmental Authority by reason willful misconduct of the execution and delivery party seeking indemnification. The Borrower also agrees not to assert any claim against any Indemnified Party on any theory of liability for special or punitive damages arising out of or otherwise relating to this Agreement, any of the Loan Documents;transactions contemplated herein or the actual or proposed use of the proceeds of any Extension of Credit.
(iiii) in connection with or resulting from Without prejudice to the utilization, storage, disposal, treatment, generation, transportation, release or ownership survival of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
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Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders and each Issuing Bank) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders, includingeach Issuing Bank and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), all the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, each LC Issuing Bank and each Lender), in connection of the Lenders with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4respect thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Administrative Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender, each Issuing Bank and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender, such Issuing Bank or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender, any Issuing Bank or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender, such Issuing Bank or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender, each Issuing Bank and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender, such Issuing Bank or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender, such Issuing Bank or the Administrative Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Issuing Bank or any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Issuing Bank or such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Issuing Bank or such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Issuing Bank or such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Issuing Bank or such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Issuing Bank or such Lender promptly repay the amount of such overpayment. Any determination made by such Issuing Bank or such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Issuing Bank or any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Issuing Bank or any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof)each Issuing Bank, the Joint Arrangers, the Swingline LenderSyndication Agent, each LC Issuing Bank the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance or the use Extension of Credit (including any refusal by the Borrower or any beneficiary of any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit;
(ii) ), except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in connection with any documentary taxes, assessments a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or charges made by any Governmental Authority by reason willful misconduct of the execution and delivery party seeking indemnification. The Borrower also agrees not to assert any claim against any Indemnified Party on any theory of liability for special or punitive damages arising out of or otherwise relating to this Agreement, any of the Loan Documents;transactions contemplated herein or the actual or proposed use of the proceeds of any Extension of Credit.
(iiii) in connection with or resulting from Without prejudice to the utilization, storage, disposal, treatment, generation, transportation, release or ownership survival of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Each Borrower agrees agrees, severally and not jointly, to pay on demand its Applicable Share of all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents, all subject to the Applicable Percentage described in the Fee Letters for fees incurred in connection with the initial closing of the transactions described herein. The Each Borrower further agrees to pay on demand its Applicable Share of all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunderthereunder (unless such cost or expense is attributable to a specific Borrower, in which case such Borrower shall be solely liable for such amount), including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4. In addition, the each Borrower shall pay its Applicable Share of any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay by such Borrower in paying or omission to pay such Other Taxes. This Section 8.4(a) shall not apply with respect to Taxes or Excluded Taxes other than any Taxes or Excluded Taxes that represent liabilities arising from any non-Tax or non-Excluded Tax claim.
(b) The Borrower Each Borrower, severally and not jointly, hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the any Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct, a material breach of such Indemnified Person’s obligations hereunder or under any other Loan Document, each as determined in a final and nonappealable judgment by a court of competent jurisdiction or any dispute solely among Indemnified Persons (not arising from any act or omission of a Borrower) other than claims against an Indemnified Person acting in its capacity as, or in fulfilling its role as, the Agent or Joint-Arrangers under this Agreement or the other Loan Documents) in each case to the extent of such Borrower’s Applicable Share (unless attributable to a specific Borrower, in which case such Borrower shall be solely liable):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the such Borrower of the proceeds of any Advance or the use by the such Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the such Borrower or any of its Affiliates or (B) by or on behalf of the such Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak the Platform or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the applicable Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the such Borrower will not relieve the such Borrower from any liability that the such Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the such Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the such Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the such Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the such Borrower. If the a Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the such Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the applicable Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the such Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the no Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsPersons and, in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Person(s) selected and retained by such Indemnified Person(s).
(c) To the extent that the any Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such LenderXxxxxx’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such sub-agent), such LC Issuing Bank or the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent), any LC Issuing Bank or the Swingline Lender in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.3
Appears in 1 contract
Samples: Five Year Master Credit Agreement (Wisconsin Power & Light Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each the LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.4(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each the LC Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance as a result of a payment or Conversion pursuant to Section 2.6(d), Section 2.10(f), Section 2.11, Section 2.12 or Section 2.14 or acceleration of the maturity of the Advances pursuant to Section 6.1 or for any other reason, the Borrower shall, upon demand by any Lender or the LC Issuing Bank (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender or the LC Issuing Bank, as the case may be, any amounts required to compensate such Lender or the LC Issuing Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint ArrangersAgent, the Swingline Lender, each the LC Issuing Bank and each Related Party of any of the foregoing Persons their respective officers, directors, employees, professional advisors and affiliates (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower or any of its Affiliates or (B) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely mannermanner (it being agreed that Xxxxx & Xxxxxxx LLP shall be deemed to be reasonably satisfactory counsel for such purpose), (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest inappropriate or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower’s obligations under this Section 8.4 shall survive the repayment of all amounts owing to the Lenders hereunder and the termination of the Commitments. If and to the extent that the obligations of the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 are unenforceable for any reason, the Borrower agrees to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), includingall the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and each of the Joint Arrangers Lenders with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender or the Administrative Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Lender promptly repay the amount of such overpayment. Any determination made by such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline LenderSyndication Agent, each LC Issuing Bank the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance Borrowing, except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the use by the Borrower gross negligence or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason willful misconduct of the execution and delivery party seeking indemnification. The Borrower also agrees not to assert any claim against any Indemnified Party on any theory of liability for special or punitive damages arising out of or otherwise relating to this Agreement, any of the Loan Documents;transactions contemplated herein or the actual or proposed use of the proceeds of any Borrowing.
(iiii) in connection with or resulting from Without prejudice to the utilization, storage, disposal, treatment, generation, transportation, release or ownership survival of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, administration, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, under this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of outside counsel and internal counsel), of the Agent, each LC Issuing Bank the Lenders and each Lender), the XX Xxxxx in connection with the enforcement and workout (whether through negotiations, legal proceedings proceedings, or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of any Eurodollar Rate Advance is made other than on the last day of the Interest Period for such Advance or as a result of a payment or Conversion pursuant to Section 2.09(f), 2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Notes pursuant to Section 7.02 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs, or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank Bank, the Agent, counsel to the Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees and Affiliates (each, an “Indemnified Person”"INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct)::
(i) by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter Extension of Credit;; and
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release release, or ownership of any Hazardous Substance (Ai) at, upon, or under any property of the Borrower or any of its Affiliates or (Bii) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 9.04 shall survive the repayment of all amounts owing to the Lenders, the XX Xxxxx and the Agent under the Loan Documents and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 9.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all reasonable and documented costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable and documented fees and out of pocket expenses of counsel for the Agent and the Joint Arrangers Arranger with respect thereto and with respect to the administration of, and advising the Agent and the Arranger as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all reasonable and documented costs and expenses, if any (including, without limitation, reasonable and documented counsel fees and expenses of the Agent, each LC Issuing Bank the Arranger and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable and documented counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.4. In addition, the Borrower shall pay any and all Other Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank the Arranger and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxes. This Section 9.4(a) shall not apply with respect to Taxes or Excluded Taxes other than any Taxes or Excluded Taxes that represent liabilities arising from any non-Tax or non-Excluded Tax claim.
(b) The Borrower hereby agrees to indemnify and hold each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank Arranger and each Related Party of any of the foregoing Persons (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them them, whether based on contract, tort or any other theory, by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct, or claimed against such Indemnified Person by the Borrower related to a material breach of such Indemnified Person’s obligations hereunder or under any other Loan Document, each as determined in a final and nonappealable judgment by a court of competent jurisdiction):
(i) by reason of or resulting from the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of CreditAdvance;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of the Borrower any Loan Party or any of its Affiliates or (B) by or on behalf of the Borrower any Loan Party or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak Intralinks or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsPersons and, in the case of an actual or perceived conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Person(s) selected and retained by such Indemnified Person(s).
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 9.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender the Arranger or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender the Arranger or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such sub-agent) in its capacity as such, the Arranger or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.3
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Lenders and the Joint Arrangers Issuing Bank) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders, includingthe Issuing Bank and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), all the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, each LC the Issuing Bank and each Lender), in connection of the Lenders with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4respect thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Administrative Agent, each LC the Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.13, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.14, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender, the Issuing Bank and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender, Issuing Bank or Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender, Issuing Bank or Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender, Issuing Bank or Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender, the Issuing Bank and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender, Issuing Bank or Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender, Issuing Bank or Administrative Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to the Issuing Bank or any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and the Issuing Bank or such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), the Issuing Bank or such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as the Issuing Bank or such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If the Issuing Bank or such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of the Issuing Bank or such Lender promptly repay the amount of such overpayment. Any determination made by the Issuing Bank or such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring the Issuing Bank or any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of the Issuing Bank or any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof)Issuing Bank, the Joint ArrangersAdministrative Agent, counsel to the Swingline LenderAdministrative Agent and their respective officers, each LC Issuing Bank directors, partners, employees, Affiliates and each Related Party of any of the foregoing Persons advisors (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance or the use Extension of Credit (including any refusal by the Borrower or any beneficiary of any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit;), except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of the party seeking indemnification.
(iii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of Without prejudice to the execution and delivery survival of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Administrative Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lenderexpenses), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or B Advance is made other than on the last day of the Interest Period for such A Advance or other than on the maturity date of such B Advance, as a result of a payment or Conversion pursuant to Section 2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, the Administrative Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderemployees, each LC Issuing Bank professional advisors and each Related Party of any of the foregoing Persons affiliates (each, an “Indemnified Person”"INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s 's gross negligence or willful misconduct):
(i) by reason of or resulting from in connection with the execution, delivery or performance of any of the Loan Documents or any transaction contemplated thereby, or the use by the Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter Extension of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority governmental authority by reason of the execution and delivery of any of the Loan Documents;; or
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (Ai) at, upon, or under any property of the Borrower or any of its Affiliates or (Bii) by or on behalf of the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) To The Borrower's obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Lenders under the Notes and the termination of the Commitments. If and to the extent that the obligations of the Borrower under this Section 8.04 are unenforceable for any reason fails reason, the Borrower agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Agent Agents (and as described in clause (iv) below, the Joint Arrangers Lenders) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders and the Agents under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), includingall the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Agent Agents and each of the Joint Arrangers Lenders with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank Agents and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If, due to payments made by the Borrower due to acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such A Advance, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such A Advance. In addition, if the Borrower fails to prepay any A Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.14, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Agents, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "TAXES"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender or Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender and the Agents for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender or Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender or Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Lender promptly repay the amount of such overpayment. Any determination made by such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (Agents, counsel to the Agents and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderpartners, each LC Issuing Bank employees, Affiliates and each Related Party of any of the foregoing Persons advisors (each, an “Indemnified Person”"INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them may incur or which ), joint and several, that may be claimed incurred by or asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance Advance, except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the use by gross negligence or willful misconduct of the Borrower or any beneficiary party seeking indemnification.
(i) Without prejudice to the survival of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Cp&l Energy Inc)
Costs, Expenses, Taxes and Indemnification. (a) The Each Borrower agrees to pay on demand all reasonable costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiationpreparation, execution, delivery, modification and amendment of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and the Joint Arrangers each LC Bank with respect thereto and with respect to the administration of, and advising the Administrative Agent as to its rights and responsibilities under, under this Agreement and the other Loan Documents. The Each Borrower further agrees to pay on demand all costs and expensesexpenses of the Administrative Agent, the Banks and the XX Xxxxx, if any (including, without limitation, reasonable counsel fees and expenses of counsel for the Agent, Administrative Agent and counsel for each LC Issuing Bank and each LenderLC Bank), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunderhereunder, including, without limitation, reasonable counsel fees and expenses of the Administrative Agent, the Banks and the XX Xxxxx in connection with the enforcement of rights under this Section 8.48.04(a). In addition, the each Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the AgentAdministrative Agent and each Bank, each LC Issuing Bank and each Lender their Affiliates harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) The If any payment of principal of, or Conversion of, any Eurodollar Rate Advance of any Borrower is made other than on the last day of the Interest Period for such Eurodollar Rate Advance, as a result of a payment or Conversion pursuant to Section 2.09(f), 2.12 or 2.13 hereof, or any acceleration of the maturity of the Advances of any Borrower pursuant to Section 6.01 hereof or if any Borrower fails to borrow or Convert (including, without limitation, failure to borrow or Convert resulting from any failure to fulfill on the date specified for such Borrowing or Conversion the applicable conditions set forth in Article III hereof) in accordance with notices delivered pursuant to Section 2.02 or 2.10 hereof or for any other reason, such Borrower shall, upon demand by any Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank any amounts required to compensate such Bank for any additional losses, costs or expenses which it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Bank to fund or maintain such Eurodollar Rate Advance.
(c) Each Borrower hereby agrees to indemnify and hold harmless each Lender, the Agent (and any sub-agent thereof), the Joint Arrangers, the Swingline LenderBank, each LC Issuing Bank the Administrative Agent, counsel to the Administrative Agent and each Related Party of any of the foregoing Persons their respective officers, directors, partners, employees, Affiliates and advisors (each, an “Indemnified Person”) harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceedingproceeding and whether or not such proceeding is brought by such Borrower or any of its Affiliates or any of their respective directors, securityholders or creditors, an Indemnified Person or any other Person) which that any of them may incur or which may be claimed against any of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct)::
(i) by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the each Borrower of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;; and
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of any of the Loan Documents;
(iii) in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release release, or ownership of any Hazardous Substance Material (A) at, upon, or under any property of the each Borrower or any of its Affiliates or (B) by or on behalf of the each Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified Persons.
(cd) Each Borrower’s obligations under this Section 8.04 shall survive the repayment of all amounts owing to the Banks, the LC Bank and the Administrative Agent hereunder and the termination of the Commitments and the expiry of all Letters of Credit. If and to the extent that the obligations of any Borrower under this Section 8.04 are unenforceable for any reason, such Borrower agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law.
(e) To the extent that the permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any Indemnified Person, on any theory of liability, for any reason fails special, indirect, consequential or punitive damages (as opposed to indefeasibly pay any amount required under paragraph (adirect or actual damages) arising out of, in connection with, or (b) of as a result of, this Section 8.4 to be paid by it to the Agent (Agreement or any sub-agent thereof)transaction, agreement or instrument contemplated hereby, any LC Issuing Bank, any Swingline Lender Advance or any Related Party Letter of any Credit or the use or intended use of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchproceeds thereof.
Appears in 1 contract
Samples: Credit Agreement (Uil Holdings Corp)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower Company agrees to pay on demand all costs and expenses of the Agent and the Joint Arrangers in connection with the preparation (including, without limitation, printing costs), syndication, negotiationpreparation, execution, delivery, administration, modification and amendment of this Agreement and the other Loan Documents, Related Documents and the other documents and instruments to be delivered hereunder and thereunderunder the Related Documents, including, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and the Joint Arrangers with respect thereto and with respect to the administration of, and advising the Administrative Agent as to its rights and responsibilities under, this Agreement and under the other Loan Related Documents. The Borrower Company further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel 37 37 fees and expenses of each Bank, including the Agent, each LC Issuing Bank and each Lenderallocated costs of staff counsel), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Related Documents and the other documents and instruments to be delivered hereunder and thereunderunder the Related Documents, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.49.04. In addition, the Borrower Company shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution execution, delivery, filing and delivery recording of this Agreement and the other Loan Documents, Related Documents and the other documents and instruments to be delivered hereunder and thereunderunder the Related Documents, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender Bank harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) The Borrower Company hereby agrees to indemnify and hold each Lenderthe Administrative Agent and the Banks and their respective officers, the Agent (directors, employees, professional advisors and any sub-agent thereof), the Joint Arrangers, the Swingline Lender, each LC Issuing Bank and each Related Party of any of the foregoing Persons affiliates (each, an “Indemnified Person”"INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or investigation or is otherwise subjected to judicial or legal process arising from any such proceedingproceeding or investigation) which any of them may incur or which may be claimed against any of them by any Person including the Borrower person or entity (except for to the extent such claims, damages, losses, liabilities, costs and or expenses resulting arise from such Indemnified Person’s the gross negligence or willful misconductmisconduct of the Indemnified Person):
(i) by reason of or resulting from in connection with the execution, delivery or performance of any of the Loan Related Documents or any transaction contemplated thereby, or the use by the Borrower Company or any Remarketing Agent of the proceeds of any Advance or the use by the Borrower or any beneficiary of any Letter of Credit of such Letter of Credit;Advance; or
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery any inaccuracy or alleged inaccuracy in any material respect, or any untrue statement or alleged untrue statement of any of material fact, contained in any registration statement relating to the Loan Documents;
(iii) Notes or in connection with or resulting from the utilization, storage, disposal, treatment, generation, transportation, release or ownership of any Hazardous Substance (A) at, upon, or under any property of Prospectus relating to the Borrower Notes or any of its Affiliates amendment or (B) supplement thereto, except to the extent contained in or arising from information in the Prospectus relating to the Notes supplied in writing by or on behalf of and describing the Borrower or any of its Affiliates at any time and in any place; or
(iv) in connection with or resulting from the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement Administrative Agent or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsBanks.
(c) To The Company's obligations under this Section 9.04 shall survive the repayment of all amounts owing to the Administrative Agent and the Banks under the Related Documents and the termination of the Commitments. If and to the extent that the Borrower obligations of the Company under this Section 9.04 are unenforceable for any reason fails reason, the Company agrees to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it make the maximum contribution to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the payment and satisfaction thereof which is permissible under applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any suchlaw.
Appears in 1 contract
Samples: Standby Note Purchase Credit Facility (Detroit Edison Co)
Costs, Expenses, Taxes and Indemnification. (a) The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent (and as described in clause (iv) below, the Joint Arrangers Lenders) in connection with (i) the preparation (includingpreparation, without limitation, printing costs), syndicationexecution, negotiation, execution, delivery, modification syndication and amendment delivery of this Agreement and the other Loan Documentsdocuments to be delivered hereunder, (ii) the first Borrowing under this Agreement, (iii) any modification, amendment or supplement to this Agreement and the other documents and instruments to be delivered hereunder and thereunder(iv) the enforcement of the rights and remedies of the Lenders and the Administrative Agent under this Agreement and the other documents to be delivered hereunder (whether through negotiations or legal proceedings), includingall the above costs and expenses to include, without limitation, the reasonable fees and out of out-of-pocket expenses of counsel for the Administrative Agent and each of the Joint Arrangers Lenders with respect thereto and with respect to the administration of, and advising the Agent as to its rights and responsibilities under, this Agreement and the other Loan Documents. The Borrower further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel fees and expenses of the Agent, each LC Issuing Bank and each Lender), in connection with the enforcement and workout (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents and the other documents and instruments to be delivered hereunder and thereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 8.4thereto. In addition, the Borrower shall pay any and all Other Taxes stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Agreement and the other Loan Documents, and the other documents and instruments to be delivered hereunder and thereunderhereunder, and agrees to save the Agent, each LC Issuing Bank Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such Other Taxestaxes.
(b) If (i) due to payments made by the Borrower due to the acceleration of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, any Lender receives payments of principal of any Eurodollar Rate Advance based upon the Eurodollar Rate other than on the last day of the Interest Period for such Advance, or (ii) due to any Conversion of Eurodollar Advance other than on the last day of an Interest Period pursuant to Section 2.12, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance. In addition, if the Borrower fails to prepay any Advance on the date for which notice of prepayment has been given, the Borrower shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any losses, costs or expenses (including loss of anticipated profits) that it may reasonably incur as a result of such prepayment not having been made on the date specified by the Borrower for such prepayment.
(c) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.13, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such Lender or Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 8.04) such Lender or Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) The Borrower will indemnify each Lender and the Administrative Agent for the full amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section 8.04) paid by such Lender or Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted. This indemnification shall be made within 30 days from the date such Lender or Agent (as the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing or on the date of the Assignment and Acceptance pursuant to which it became a Lender, in the case of each Lender that becomes a Lender by virtue of entering into an Assignment and Acceptance, and from time to time thereafter if requested by the Borrower or the Administrative Agent, each Lender organized under the laws of a jurisdiction outside the United States shall provide the Administrative Agent and the Borrower with the forms prescribed by the Internal Revenue Service of the United States certifying that such Lender is exempt from United States withholding taxes with respect to all payments to be made to such Lender hereunder. If for any reason during the term of this Agreement, any Lender becomes unable to submit the forms referred to above or the information or representations contained therein are no longer accurate in any material respect, such Lender shall notify the Administrative Agent and the Borrower in writing to that effect. Unless the Borrower and the Administrative Agent have received forms or other documents satisfactory to them indicating that payments hereunder are not subject to United States withholding tax, the Borrower or the Administrative Agent shall withhold taxes from such payments at the applicable statutory rate in the case of payments to or for any Lender organized under the laws of a jurisdiction outside the United States.
(f) Any Lender claiming any additional amounts payable pursuant to Section 8.04(c) or (d) shall use its reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) (i) to change the jurisdiction of its Applicable Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender and (ii) to otherwise minimize the amounts due, or to become due, under Sections 8.04(c) and (d).
(g) If the Borrower makes any additional payment to any Lender pursuant to Sections 8.04(c) and (d) in respect of any Taxes, and such Lender determines that it has received (i) a refund of such Taxes or (ii) a credit against or relief or remission for, or a reduction in the amount of, any tax or other governmental charge solely as a result of any deduction or credit for any Taxes with respect to which it has received payments under Sections 8.04(c) and (d), such Lender shall, to the extent that it can do so without prejudice to the retention of such refund, credit, relief, remission or reduction, pay to the Borrower such amount as such Lender shall have determined to be attributable to the deduction or withholding of such Taxes. If such Lender later determines that it was not entitled to such refund, credit, relief, remission or reduction to the full extent of any payment made pursuant to the first sentence of this Section 8.04(g), the Borrower shall upon demand of such Lender promptly repay the amount of such overpayment. Any determination made by such Lender pursuant to this Section 8.04(g) shall in the absence of bad faith or manifest error be conclusive, and nothing in this Section 8.04(g) shall be construed as requiring any Lender to conduct its business or to arrange or alter in any respect its tax or financial affairs so that it is entitled to receive such a refund, credit or reduction or as allowing any Person to inspect any records, including tax returns, of any Lender.
(h) The Borrower hereby agrees to indemnify and hold harmless each Lender, the Administrative Agent, counsel to the Administrative Agent (and any sub-agent thereof)their respective officers, the Joint Arrangersdirectors, the Swingline Lenderpartners, each LC Issuing Bank employees, Affiliates, Subsidiaries and each Related Party of any of the foregoing Persons advisors (each, an “"Indemnified Person”") harmless from and against any and all claims, damages, losses, liabilities, costs costs, or expenses (including reasonable attorney’s 's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or is otherwise subjected to judicial or legal process arising from any such proceeding) which any of them ), joint and several, that may incur actually be incurred by or which may be claimed asserted or awarded against any Indemnified Person (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of them by any Person including the Borrower (except for such claims, damages, losses, liabilities, costs and expenses resulting from such Indemnified Person’s gross negligence or willful misconduct):
(ia defense in connection therewith) in each case by reason of or resulting from in connection with the execution, delivery delivery, or performance of any of the Loan Documents or any transaction contemplated therebythis Agreement, or the use by the Borrower of the proceeds of any Advance Advance, except to the extent that such claims, damages, losses, liabilities, costs, or expenses are determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the use by the Borrower gross negligence or any beneficiary of any Letter of Credit of such Letter of Credit;
(ii) in connection with any documentary taxes, assessments or charges made by any Governmental Authority by reason willful misconduct of the execution and delivery party seeking indemnification. The Borrower also agrees not to assert any claim against any Indemnified Party on any theory of liability for special or punitive damages arising out of or otherwise relating to this Agreement, any of the Loan Documents;transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(iiii) in connection with or resulting from Without prejudice to the utilization, storage, disposal, treatment, generation, transportation, release or ownership survival of any Hazardous Substance (A) at, upon, or under any property other agreement of the Borrower or any of its Affiliates or (B) by or on behalf hereunder, the agreements and obligations of the Borrower or any contained in this Section 8.04 shall survive the payment in full of its Affiliates at any time principal and in any place; or
(iv) in connection with or resulting from interest hereunder and the use by unintended recipients of any information or other materials distributed by it through the internet, SyndTrak or other similar transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. In case any action or proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify the Borrower termination of the commencement of any action or proceeding; provided, however, that the failure so to notify the Borrower will not relieve the Borrower from any liability that the Borrower may have to such Indemnified Person pursuant hereto or from any liability that it may have to such Indemnified Person other than pursuant hereto. Notwithstanding the above, following such notification, the Borrower may elect in writing to assume the defense of such action or proceeding, and, upon such election, the Borrower will not, as long as it diligently conducts such defense, be liable for any legal costs subsequently incurred by such Indemnified Person (other than reasonable costs of investigation and providing evidence) in connection therewith, unless (i) the Borrower has failed to provide counsel reasonably satisfactory to such Indemnified Person in a timely manner, (ii) the Indemnified Person determines in good faith that joint representation would be inappropriate, including any actual or potential conflict of interest or (iii) the Indemnified Person reasonably determines that there may be legal defenses available to it which are different from, or in addition to those available to the Borrower. If the Borrower assumes the defense of any such action or proceeding, (a) it will be conclusively established for purposes of this Agreement that the claims made with respect thereto are subject to indemnification hereunder; (b) no compromise or settlement of such claims may be effected by the Borrower without the Indemnified Person’s consent and (c) the Indemnified Person will have no liability with respect to any compromise or settlement of such claims effected without its consent. Notwithstanding the foregoing, if any Indemnified Person determines in good faith that there is a reasonable probability that any action or proceeding may adversely affect it or its affiliates other than as a result of monetary damages for which it would be entitled to indemnification hereunder, such Indemnified Person may, by notice to the Borrower, assume the exclusive right to defend, compromise, or settle such action or proceeding, but the Borrower will not be bound (but will retain its indemnification obligations hereunder) by any determination of an action or proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). In connection with any one action or proceeding, the Borrower will not be responsible for the fees and expenses of more than one separate law firm (in addition to local counsel) for all Indemnified PersonsCommitments.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 8.4 to be paid by it to the Agent (or any sub-agent thereof), any LC Issuing Bank, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such LC Issuing Bank, such Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); 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 Agent (or any such
Appears in 1 contract
