Common use of Environmental Indemnities Clause in Contracts

Environmental Indemnities. (i) Indemnification Concerning Projects 8, 9, 10, 11 and 33-37. The LP Unit Recipients (jointly and severally, "POST-CLOSING CONTRIBUTOR") hereby indemnify, defend, and hold harmless Acquiror, its partners, shareholders and the respective agents, contractors, employees, shareholders, trustees and representatives of each of Acquiror, its partners and shareholders, and each of their successors and assigns, from and against any and all liabilities, claims, demands, suits, administrative proceedings, causes of action, penalties, fines, liens, reasonable fees, costs (including reasonable attorneys' fees and costs and environmental consultants' fees, as limited by Subparagraph 9(c)(ii)), damages (including reasonable attorneys' fees and costs and environmental consultants' fees and expenses incurred by Acquiror with respect to enforcing its rights hereunder), personal injuries and property damages, losses and expenses, both known and unknown, present and future, at law or in equity, but not including consequential damages (collectively, "LOSS" or "LOSSES") as a result of or arising from: (A) the presence at Projects 8 and 9 (the "GOLDISC SITE") of (i) any Hazardous Materials in the groundwater, and (ii) the presence at the Goldisc Site of any petroleum products or petroleum degradation products in the soil or groundwater at Areas of Environmental Concern ("AEC") 5 and 13 as depicted in Figure 2-2 of Phase II Remedial Investigation Report: Former Goldisc Recordings Facility, Holbrook, New York, prepared by ERM-Northeast, April 1995; provided, however, that the activities, events, conditions or occurrences that resulted in Losses concerning the Goldisc Site occurred prior to the Closing Date (and such conditions or occurrences shall be deemed to include the continued spread of contamination that may occur after the Closing Date); provided further, however, that all indemnities concerning groundwater contamination at the Goldisc Site shall immediately terminate only after the remedial action for groundwater selected by the USEPA is completed, including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority, and all indemnities concerning AEC 5 and 13 of the Goldisc Site shall terminate only after the remedial actions for AEC 5 and 13 have been completed (as "completed" is defined in Subparagraph 9(d)(ii)(E) herein), including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority; and

Environmental Indemnities. (i) Indemnification Concerning Projects 8, 9, 10, 11 and 33-37. The LP Unit Recipients (jointly and severally, "POST-CLOSING CONTRIBUTOR") Borrowers hereby agree to indemnify, defend, defend and hold harmless Acquirorthe Bank and each of its officers, its partners, shareholders and the respective agents, contractorsdirectors, employees, shareholdersagents, trustees and representatives of each of Acquirorconsultants, its partners and shareholdersattorneys, contractors and each of their its affiliates, successors and or assigns, or transferees from and against against, and reimburse said Persons in full with respect to, any and all liabilitiesloss, claimsliability, demandsdamage, suits, administrative proceedings, causes of actionfines, penalties, finescosts and expenses, liensof every kind and character, reasonable fees, costs (including reasonable attorneys' fees and costs and environmental consultants' feescourt costs, as limited by Subparagraph 9(c)(ii)), damages (including reasonable attorneys' fees and costs and environmental consultants' fees and expenses incurred by Acquiror with respect to enforcing its rights hereunder), personal injuries and property damages, losses and expenses, both known and or unknown, present fixed or contingent, occasioned by or associated with any claims, demands, causes of action, suits and/or enforcement actions, including any administrative or judicial proceedings, and futureany remedial, at law removal or in equityresponse actions ever asserted, but not threatened, instituted or requested by any Persons, including consequential damages (collectivelyany Tribunal, "LOSS" or "LOSSES") as a result arising out of or arising from: related to: (Aa) the presence at Projects 8 and 9 breach of any representation or warranty of Borrowers contained in Section 7.16 set forth herein; (b) the "GOLDISC SITE"failure of Borrowers to perform any of their covenants contained in Section 6.7 herein; (c) the ownership, construction, occupancy, operation, use of the Collateral prior to the earlier of the date on which (i) any Hazardous Materials the Indebtedness and obligations secured hereby have been paid and performed in full and the groundwaterSecurity Instruments have been released, and or (ii) the presence at Collateral has been sold by the Goldisc Site Bank following the Bank's ownership of any petroleum products the Collateral by way of foreclosure of the Liens granted pursuant hereto, deed in lieu of such foreclosure or petroleum degradation products in otherwise (the soil or groundwater at Areas of Environmental Concern ("AECRelease Date") 5 and 13 as depicted in Figure 2-2 of Phase II Remedial Investigation Report: Former Goldisc Recordings Facility, Holbrook, New York, prepared by ERM-Northeast, April 1995); provided, however, that this indemnity shall not apply with respect to matters caused by or arising solely from the activitiesBank's or its officers', eventsdirectors', conditions employees', agents', consultants', attorneys', contractors', or occurrences that resulted in Losses concerning any of its affiliates', successors', assigns' or transferees' activities during any period of time the Goldisc Site occurred prior to the Closing Date (and such conditions or occurrences shall be deemed to include the continued spread of contamination that may occur after the Closing Date); provided further, however, that all indemnities concerning groundwater contamination at the Goldisc Site shall immediately terminate only after the remedial action for groundwater selected by the USEPA is completed, including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority, and all indemnities concerning AEC 5 and 13 Bank acquires ownership of the Goldisc Site shall terminate only after Collateral. The indemnities contained in this Section 6.8 apply, without limitation, to any violation of Borrowers on or before the remedial actions for AEC 5 Release Date of any Environmental Laws and 13 have been completed (as "completed" is defined in Subparagraph 9(d)(ii)(E) herein), including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority; andliability or

Environmental Indemnities. (i) Indemnification Concerning Projects 8, 9, 10, 11 and 33-37. The LP Unit Recipients (jointly and severally, "POST-CLOSING CONTRIBUTOR") Each Loan Party hereby agrees to indemnify, defend, defend and hold harmless Acquirorthe Lender and each of its officers, its partners, shareholders and the respective agents, contractorsdirectors, employees, shareholdersagents, trustees and representatives of each of Acquirorconsultants, its partners and shareholdersattorneys, contractors and each of their its Affiliates, successors and or assigns, or transferees from and against against, and reimburse said Persons in full with respect to, any and all liabilitiesloss, liability, damage, fines, penalties, costs and expenses, of every kind and character, including reasonable attorneys’ fees and court costs, known or unknown, fixed or contingent, occasioned by or associated with any claims, demands, suits, administrative proceedings, causes of action, penaltiessuits and/or enforcement actions, finesincluding any administrative or judicial proceedings, liensand any remedial, reasonable feesremoval or response actions ever asserted, costs (threatened, instituted or requested by any Persons, including reasonable attorneys' fees and costs and environmental consultants' feesany Tribunal, as limited by Subparagraph 9(c)(ii)), damages (including reasonable attorneys' fees and costs and environmental consultants' fees and expenses incurred by Acquiror with respect to enforcing its rights hereunder), personal injuries and property damages, losses and expenses, both known and unknown, present and future, at law or in equity, but not including consequential damages (collectively, "LOSS" or "LOSSES") as a result arising out of or arising from: related to: (Aa) the presence at Projects 8 and 9 breach of any representation or warranty of any Loan Party contained in Section 9.6 set forth herein; (b) the "GOLDISC SITE"failure of any Loan Party to perform any of its covenants contained in Section 6.6 or 6.7 hereunder; (c) the ownership, construction, occupancy, operation, use of the Collateral prior to the earlier of the date on which (i) any Hazardous Materials the Indebtedness and obligations secured hereby have been paid and performed in the groundwaterfull, and or (ii) the presence at Collateral has been sold by the Goldisc Site Lender following its ownership of any petroleum products the Collateral by way of foreclosure of the Liens granted pursuant hereto, deed in lieu of such foreclosure or petroleum degradation products in otherwise (the soil or groundwater at Areas of Environmental Concern ("AEC") 5 and 13 as depicted in Figure 2-2 of Phase II Remedial Investigation Report: Former Goldisc Recordings Facility, Holbrook, New York, prepared by ERM-Northeast, April 1995“Release Date”); provided, however, this indemnity shall not apply with respect to matters caused by or arising solely from the Lender or its agent’s, consultant’s, attorney’s or contractor’s activities during any period of time the Lender acquires ownership of the Collateral. The provisions of this Section 6.7 shall be in addition to any other obligations and liabilities the Loan Party may have to the Lender at common law or otherwise hereunder and except as expressly provided for herein shall survive the Release Date and shall continue thereafter in full force and effect. The Lender agrees that in the event that such claim, suit or enforcement action is asserted or threatened in writing or instituted against it or any of its officers, employers, agents or contractors or any such remedial, removal or response action is requested of it or any of its officers, employees, agents or contractors for which the Lender may desire indemnity or defense hereunder, the Lender shall give written notification thereof to each Loan Party. Notwithstanding anything to the contrary stated herein, the indemnities created by this Section 6.7 shall only apply to losses, liabilities, damages, fines, penalties, costs and expenses actually incurred by the Lender as a result of claims, demands, actions, suits or proceedings brought by Persons who are not the beneficiaries of any such indemnity. The Lender shall act as the exclusive agent for all indemnified Persons under this Section 6.7 who are affiliated with the Lender. With respect to any claims or demands made by such indemnified Persons, the Lender shall notify Each Loan Party within ten (10) Business Days after the Lender’s receipt of a writing advising such Person of such claim or demand. Such notice shall identify (i) when such claim or demand was first made, (ii) the identity of the Person making it, (iii) the indemnified Person, and (iv) the substance of such claim or demand. Failure to so notify Each Loan Party within said ten (10) Business Days shall reduce the amount of the Loan Parties’ obligations and liabilities under this Section 6.7 by an amount equal to any damages or losses suffered by the Loan Parties resulting from any prejudice caused the Loan Parties by such delay in notification from the Lender. Upon receipt of such notice, the Loan Parties shall have the exclusive right and obligation to contest, defend, negotiate or settle any such claim or demand through counsel of their own selection (but reasonably satisfactory to the Lender) and solely at each Loan Parties’ own cost, risk and expense; provided, that the activitiesLender, eventsat its own cost and expense shall have the right to participate in any such contest, conditions defense, negotiations or occurrences that resulted in Losses concerning settlement. The settlement of any claim or demand hereunder by any Loan Party may be made only upon the Goldisc Site occurred prior to the Closing Date (and such conditions or occurrences shall be deemed to include the continued spread of contamination that may occur after the Closing Date); provided further, however, that all indemnities concerning groundwater contamination at the Goldisc Site shall immediately terminate only after the remedial action for groundwater selected by the USEPA is completed, including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority, and all indemnities concerning AEC 5 and 13 approval of the Goldisc Site Lender of the terms of the settlement, which approval shall terminate only after the remedial actions for AEC 5 and 13 have been completed (as "completed" is defined in Subparagraph 9(d)(ii)(E) herein), including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority; andbe unreasonably withheld.

Environmental Indemnities. (i) Indemnification Concerning Projects 8, 9, 10, 11 and 33-37. The LP Unit Recipients (jointly and severally, "POST-CLOSING CONTRIBUTOR") Each Loan Party hereby agrees to indemnify, defend, defend and hold harmless Acquirorthe Agent, its partners, shareholders and the respective agents, contractors, employees, shareholders, trustees and representatives of each of Acquiror, its partners and shareholders, Bank and each of their respective officers, directors, employees, agents, consultants, attorneys, contractors and each of its affiliates, successors and or assigns, or transferees from and against against, and reimburse said Persons in full with respect to, any and all liabilitiesloss, liability, damage, fines, penalties, costs and expenses, of every kind and character, including reasonable attorneys’ fees and court costs, known or unknown, fixed or contingent, occasioned by or associated with any claims, demands, suits, administrative proceedings, causes of action, penaltiessuits and/or enforcement actions, finesincluding any administrative or judicial proceedings, liensand any remedial, reasonable feesremoval or response actions ever asserted, costs (threatened, instituted or requested by any Persons, including reasonable attorneys' fees and costs and environmental consultants' feesany Tribunal, as limited by Subparagraph 9(c)(ii)), damages (including reasonable attorneys' fees and costs and environmental consultants' fees and expenses incurred by Acquiror with respect to enforcing its rights hereunder), personal injuries and property damages, losses and expenses, both known and unknown, present and future, at law or in equity, but not including consequential damages (collectively, "LOSS" or "LOSSES") as a result arising out of or arising from: related to: (Aa) the presence at Projects 8 and 9 breach of any representation or warranty of any Loan Party contained in Section 9.6 set forth herein; (b) the "GOLDISC SITE"failure of any Loan Party to perform any of its covenants contained in Section 6.6 or 6.7 hereunder; (c) the ownership, construction, occupancy, operation, use of the Collateral prior to the earlier of the date on which (i) any Hazardous Materials the Indebtedness and obligations secured hereby have been paid and performed in the groundwaterfull, and or (ii) the presence at Collateral has been sold by the Goldisc Site Agent or any Bank following such Person’s ownership of any petroleum products the Collateral by way of foreclosure of the Liens granted pursuant hereto, deed in lieu of such foreclosure or petroleum degradation products in otherwise (the soil or groundwater at Areas of Environmental Concern ("AEC") 5 and 13 as depicted in Figure 2-2 of Phase II Remedial Investigation Report: Former Goldisc Recordings Facility, Holbrook, New York, prepared by ERM-Northeast, April 1995“Release Date”); provided, however, this indemnity shall not apply with respect to matters caused by or arising solely from the Agent, any Bank or their respective agents’, consultants’, attorneys’ or contractors’ activities during any period of time such Person acquires ownership of the Collateral. The provisions of this Section 6.7 shall be in addition to any other obligations and liabilities the Loan Party may have to the Agent and the Banks at common law or otherwise hereunder and except as expressly provided for herein shall survive the Release Date and shall continue thereafter in full force and effect. The Agent and each Bank agrees that in the event that such claim, suit or enforcement action is asserted or threatened in writing or instituted against it or any of its officers, employers, agents or contractors or any such remedial, removal or response action is requested of it or any of its officers, employees, agents or contractors for which the Agent or any Bank may desire indemnity or defense hereunder, the Agent or the applicable Bank shall give written notification thereof to Each Loan Party. Notwithstanding anything to the contrary stated herein, the indemnities created by this Section 6.7 shall only apply to losses, liabilities, damages, fines, penalties, costs and expenses actually incurred by the Agent or the applicable Bank as a result of claims, demands, actions, suits or proceedings brought by Persons who are not the beneficiaries of any such indemnity. Each Bank shall act as the exclusive agent for all indemnified Persons under this Section 6.7 who are affiliated with such Bank. With respect to any claims or demands made by such indemnified Persons, the Agent or applicable Bank shall notify Each Loan Party within ten (10) Business Days after the Agent’s or such Bank’s receipt of a writing advising such Person of such claim or demand. Such notice shall identify (i) when such claim or demand was first made, (ii) the identity of the Person making it, (iii) the indemnified Person, and (iv) the substance of such claim or demand. Failure to so notify Each Loan Party within said ten (10) Business Days shall reduce the amount of the Loan Parties’ obligations and liabilities under this Section 6.7 by an amount equal to any damages or losses suffered by the Loan Parties resulting from any prejudice caused the Loan Parties by such delay in notification from the Agent or such Bank. Upon receipt of such notice, the Loan Parties shall have the exclusive right and obligation to contest, defend, negotiate or settle any such claim or demand through counsel of their own selection (but reasonably satisfactory to the Agent or such applicable Bank) and solely at each Loan Parties’ own cost, risk and expense; provided, that the activitiesAgent or the applicable Bank, eventsat its own cost and expense shall have the right to participate in any such contest, conditions defense, negotiations or occurrences that resulted in Losses concerning settlement. The settlement of any claim or demand hereunder by any Loan Party may be made only upon the Goldisc Site occurred prior to the Closing Date (and such conditions or occurrences shall be deemed to include the continued spread of contamination that may occur after the Closing Date); provided further, however, that all indemnities concerning groundwater contamination at the Goldisc Site shall immediately terminate only after the remedial action for groundwater selected by the USEPA is completed, including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority, and all indemnities concerning AEC 5 and 13 approval of the Goldisc Site Agent or the applicable Bank of the terms of the settlement, which approval shall terminate only after the remedial actions for AEC 5 and 13 have been completed (as "completed" is defined in Subparagraph 9(d)(ii)(E) herein), including, but not limited to, any monitoring and/or operations and maintenance required by a Governmental Authority; andbe unreasonably withheld.