Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 6 contracts
Samples: Financing Agreement (Xponential Fitness, Inc.), Credit Agreement (Boxlight Corp), Credit Agreement (Stronghold Digital Mining, Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 4 contracts
Samples: Financing Agreement (Xponential Fitness, Inc.), Financing Agreement (Xponential Fitness, Inc.), Financing Agreement (Xponential Fitness, Inc.)
Environmental Indemnity. Without limiting Section 12.15(a13.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestcorporate predecessor, or (y) of any Hazardous Materials generated and disposed of Handled by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestcorporate predecessor; (ii) any violations of Environmental Laws by or relating to any Loan PartyLaws; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestcorporate predecessor; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed Handled by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestcorporate predecessor; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r7.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”8.01(j). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable legal fees and expenses, consultant fees and laboratory fees) covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 4 contracts
Samples: Financing Agreement (Oglebay Norton Co /Ohio/), Financing Agreement (Oglebay Norton Co /Ohio/), Financing Agreement (Solutia Inc)
Environmental Indemnity. Without limiting Section 12.15(a11.14(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of or in connection with (i) any Releases or threatened Releases (x) at any property presently or facility currently or formerly owned or operated by any Loan Party Party, any Subsidiary or any Subsidiary of predecessor in interest or at any property or facility which received Hazardous Materials generated, managed or otherwise handled by any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of applicable Environmental Laws by or relating to any Loan Party, any Subsidiary or predecessor in interest; (iii) any Environmental Action relating to any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any Response Action at a facility or property owned or operated at any time by any Loan Party, any Subsidiary or predecessor in interest; (v) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and or (vvi) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r6.01(q) or the breach of any covenant made by the Loan Parties in Section 7.01(j7.01(i) (all of the foregoing, collectively, “Environmental Indemnified Matters”or Section 7.02(m). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 3 contracts
Samples: Financing Agreement (Body Central Acquisition Corp), Financing Agreement (Body Central Acquisition Corp), Financing Agreement (Body Central Acquisition Corp)
Environmental Indemnity. Without limiting Section 12.15(a10.14(a) hereof, each Loan Party agrees to, jointly and severally, defend, protect, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, including reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of or in connection with (i) any Releases or threatened Releases (x) at any property presently or facility currently or formerly owned or operated by any Loan Party Party, any Subsidiary or any Subsidiary of predecessor in interest or at any property or facility which received Hazardous Materials generated, managed or otherwise handled by any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of applicable Environmental Laws by or relating to any Loan Party, any Subsidiary or predecessor in interest; (iii) any Environmental Action relating to any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any Remedial Action at a facility or property owned or operated at any time by any Loan Party, any Subsidiary or predecessor in interest; (v) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and or (vvi) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r5.01(q) or the breach of any covenant made by the Loan Parties in Section 7.01(j6.01(i) (all of the foregoing, collectively, “Environmental Indemnified Matters”or Section 6.02(m). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 3 contracts
Samples: Credit Agreement (RMG Networks Holding Corp), Credit Agreement (SCG Financial Acquisition Corp.), Subordination Agreement (SCG Financial Acquisition Corp.)
Environmental Indemnity. Without limiting Section 12.15(a) hereofThe Borrower shall protect, each Loan Party agrees to, jointly and severally, defend, indemnify, indemnify and hold the Agent and the Lenders and all directors, officers, employees and agents of the Agent or the Lenders harmless the Indemnitees from and against any and all Environmental Liabilities and Costs and all other actual or potential claims, demandsliabilities, damages, losses, fines, penalties, finessanctions, liability (including strict liability)judgments, losses, damagesawards, costs and expenses whatsoever (including, reasonable and documented out-of-pocket fees without limitation, costs and expenses of one outside counsel investigating, denying or defending any of the foregoing and one local counsel to the Agents costs and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the expenses for preparing any necessary environmental assessment report or other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising such reports) which arise out of or relate in any way to:
(ia) any Releases the presence, use, handling, production, transportation, storage, release, deposit, discharge or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) disposal of any Hazardous Materials generated in, on or about any Property owned, operated or occupied by the Restricted Parties and disposed their Subsidiaries, whether by the Restricted Parties or any other person;
(b) any remedial action taken by the Agent or any Lender in connection with any matter referred to in paragraph (a), including without limitation any repair, clean-up, remediation or detoxification of any of such Property and the preparation of any closure or other required plans; and
(c) any breach by any Loan Restricted Party or any Subsidiary of any Loan PartyEnvironmental Law. Notwithstanding anything to the contrary contained in this Agreement, (i) the indemnity provisions set forth above shall not apply with respect to Hazardous Materials, contaminants, wastes or any predecessor other substances which the Borrower establishes were first placed on, in, under or about the property in interest; question after the Agent or a Lender or other indemnified party took actual and exclusive possession of the property (either through foreclosure or otherwise), and (ii) the indemnity provisions set forth above are not intended to indemnify any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the indemnified party for its own gross negligence or willful misconduct wilful misconduct. If any Hazardous Materials are caused to be removed by any Restricted Party, the Agent, a Lender or any other indemnified party, then such Hazardous Materials will be and remain the property of the Restricted Party to which they belonged before removal, and such Indemnitee, as determined by a final non-appealable judgment Restricted Party will assume any and all liability for such removed Hazardous Materials. The Borrower understands that its liability to the indemnified parties under this Section will survive the termination of a court this Agreement and repayment of competent jurisdictionthe Obligations.
Appears in 3 contracts
Samples: Credit Agreement (Norske Skog Canada LTD), Credit Agreement (Norske Skog Canada LTD), Credit Agreement (Norske Skog Canada LTD)
Environmental Indemnity. Without limiting (a) Subject to the limitations in this Section 12.15(a) hereof11.3, each Loan Party agrees tothe Borrowers agree to and do hereby, jointly and severally, defend, indemnify, indemnify and hold save harmless the Indemnitees Indemnified Parties from and against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses of any and every nature and kind whatsoever which at any time or from time to time may be paid by or incurred by them (without duplication and net of Tax Recoveries by any of the Indemnified Parties) for, with respect to, or as a direct or indirect result of the disposal, refining, generation, manufacture, production, storage, handling, presence, treatment, transfer, release, processing or transportation of any Hazardous Material in, on or under any property of whatsoever nature or kind of a Borrower, or any Subsidiary thereof, or the discharge, emission, spill or disposal from such property into or upon any land, the atmosphere or any watercourse, body of water or wetland of any Hazardous Material where it has been proven that the source of the Hazardous Material is the said property to the extent that such losses, damages, costs and expenses arise out of the relationship between the Indemnified Parties and a Borrower reflected herein including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of without limitation:
(i) any Releases the cost of defending and/or counterclaiming or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary claiming over against third parties in respect of any Loan Party, action or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; matter referred to above;
(ii) any violations cost, liability or damage arising out of Environmental Laws by or relating any settlement of any action referred to above to which any Loan PartyIndemnified Party is a party; and
(iii) any Environmental Action relating to any Loan Party or any Subsidiary costs of any Loan Partycleanup in connection with any matter referred to above.
(b) In the event that any claim, action, order, suit or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials usedproceeding, handledincluding, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by without limiting the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all generality of the foregoing, collectivelyany inquiry or investigation (whether formal or informal) is brought or instituted against any Indemnified Party, the Indemnified Party shall promptly notify the Borrowers and the Borrowers shall promptly retain counsel who shall be reasonably satisfactory to the Indemnified Parties to represent the Indemnified Parties in such claim, action, order, suit or proceeding and the Borrowers shall pay all of the reasonable fees and disbursements of such counsel relating to such claim, action, order, suit or proceeding.
(c) In any such claim, action, order, suit or proceeding, the Indemnified Parties shall have the rights to retain other counsel to act on their behalf, provided that the fees and disbursements of such other counsel shall be paid by the Indemnified Parties unless: (i) the Borrowers and the Indemnified Parties shall have mutually agreed to the retention of such other counsel; or (ii) the named parties to any such claim, action, order, suit or proceeding (including any added, third or impleaded parties) include the Borrowers and the Indemnified Parties and representation of all such parties by the same counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of different defences).
(d) Notwithstanding anything contained in this Section 11.3, none of the Indemnified Parties shall agree to any settlement of any such claim, action, order, suit or proceeding unless the Borrowers shall have consented in writing thereto, and the Borrowers shall not be liable for any settlement of any such claim, action, order, suit or proceeding unless they have consented in writing thereto. The Borrowers shall be entitled to settle any such claim, action, order, suit or proceeding on any terms it deems appropriate.
(e) The provisions of this Section 11.3 shall survive the Final Maturity Date and the repayment of all Borrowings hereunder and the satisfaction by the Borrowers of all other obligations hereunder.
(f) For the purposes of this Section 11.3, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have Tax Recoveries” of any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment Person in respect of a court payment or outlay made or incurred by such Person means the Taxes that would be saved or recovered by such Person and the creation or increase of competent jurisdictiona loss or credit for Tax purposes which may be used to reduce Taxes payable by such Person.
Appears in 2 contracts
Samples: Credit Agreement (Firstservice Corp), Credit Agreement (Firstservice Corp)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees toEach Company will, jointly and severally, defend, indemnify, indemnify and hold harmless the Indemnitees Administrative Agent, the Co-Document Agents, each Lender, and their respective officers, directors, affiliates, employees and agents (each, an "Indemnified Party") from and against any and all Environmental Liabilities and Costs and all other losses, liabilities, claims, demandsdamages, penalties, fines, liability (including strict liability), losses, damagesjudgments, costs and expenses (including reasonable attorneys' fees) of whatever kind or nature, known or unknown, contingent or otherwise, including, but without limitation, reasonable attorney and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdictionconsultant fees, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees investigation and laboratory fees), court costs and litigation expenses incurred by any of them arising out of of, or in any way relating to (i) any Releases violation or threatened Releases (x) at any property presently non-compliance or formerly owned or operated alleged non-compliance with any Environmental Laws by any Loan Party Company or any Subsidiary of its Subsidiaries or by any Loan Partyother Person with whom any Company or any of its Subsidiaries are allegedly jointly, severally or contingently liable or responsible, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations Release or alleged Release into the environment of Environmental Laws any Contaminant generated or allegedly generated by any Company or relating to any Loan Party; of its Subsidiaries or by any other Person with whom any Company or any of its Subsidiaries are allegedly jointly, severally or contingently liable or responsible, or (iii) any material breach of any representation or warranty made by any Company in Section 6.1(s) hereof, Section 6.1(s) of the Original Credit Agreement, the First Amended Credit Agreement, the Second Amended Credit Agreement, the Third Amended Credit Agreement or this Agreement, (iv) the Administrative Agent's or any Lender's enforcement or attempted enforcement of any of the provisions of this Section 10.05 or (v) otherwise arising in connection with any Environmental Action Claim relating to any Company, any of its Subsidiaries or their respective properties. FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, PAGE 73 80 (b) General Indemnity. In addition to the foregoing indemnity, each Company hereby jointly and severally indemnifies from, and holds each of the Indemnified Parties harmless against, any and all losses, liabilities, claims, damages, penalties, judgments, costs, and expenses (including reasonable attorneys' fees) to which any of them may become subject (other than those described in Section 10.05(a)) which directly or indirectly arise from or relate to (i) the negotiation, execution, delivery, performance, administration, enforcement or existence of the Original Credit Agreement, the First Amended Credit Agreement, the Second Amended Credit Agreement, the Third Amended Credit Agreement, this Agreement, any Loan Party Documents or any Subsidiary of the Related Transactions Documents , (ii) any Loan Partyof the transactions contemplated by the Original Credit Agreement, the First Amended Credit Agreement, the Second Amended Credit Agreement, the Third Amended Credit Agreement, this Agreement, or any predecessor of the Related Transactions Documents , (iii) any breach by any Credit Party of any representation, warranty, covenant, or other agreement contained in interest; the Original Credit Agreement, the First Amended Credit Agreement, the Second Amended Credit Agreement, the Third Amended Credit Agreement, this Agreement, or any of the Related Transactions Documents, or (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials usedinvestigation, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Partylitigation, or other proceeding, including, without limitation, any predecessor in interest; and (v) threatened investigation, litigation, or other proceeding relating to any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 2 contracts
Samples: Credit Agreement (Coho Energy Inc), Credit Agreement (Coho Resources Inc)
Environmental Indemnity. Without limiting (a) Subject to the limitations in this Section 12.15(a) hereof11.3, each Loan Party agrees tothe Borrowers agree to and do hereby, jointly and severally, defend, indemnify, indemnify and hold save harmless the Indemnitees Agents and the Lenders and their officers, directors, employees, agents and shareholders in such capacities (the "Indemnified Parties") from and against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses of any and every nature and kind whatsoever which at any time or from time to time may be paid by or incurred by them (includingwithout duplication and net of Tax Recoveries by any of the Indemnified Parties) for, reasonable and documented out-of-pocket fees with respect to, or as a direct or indirect result of the disposal, refining, generation, manufacture, production, storage, handling, presence, treatment, transfer, release, processing or transportation of any Hazardous Material in, on or under any property of whatsoever nature or kind of a Borrower, or any Subsidiary thereof, or the discharge, emission, spill or disposal from such property into or upon any land, the atmosphere or any watercourse, body of water or wetland of any Hazardous Material where it has been proven that the source of the Hazardous Material is the said property to the extent that such losses, damages, costs and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising arise out of the relationship between the Indemnified Parties and a Borrower reflected herein including,without limitation:
(i) any Releases the cost of defending and/or counterclaiming or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary claiming over against third parties in respect of any Loan Party, action or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; matter referred to above;
(ii) any violations cost, liability or damage arising out of Environmental Laws by or relating any settlement of any action referred to above to which any Loan PartyIndemnified Party is a party; and
(iii) any Environmental Action relating to any Loan Party or any Subsidiary costs of any Loan Partycleanup in connection with any matter referred to above.
(b) In the event that any claim, action, order, suit or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials usedproceeding, handledincluding, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by without limiting the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all generality of the foregoing, collectively, “Environmental any inquiry or investigation (whether formal or informal) is brought or instituted against any Indemnified Matters”). Notwithstanding the foregoingParty, the Loan Indemnified Party shall promptly notify the Borrowers and the Borrowers shall promptly retain counsel who shall be reasonably satisfactory to the Indemnified Parties to represent the Indemnified Parties in such claim, action, order, suit or proceeding and the Borrowers shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by pay all of the gross negligence or willful misconduct reasonable fees and disbursements of such Indemniteecounsel relating to such claim, as determined by a final non-appealable judgment of a court of competent jurisdictionaction, order, suit or proceeding.
Appears in 1 contract
Samples: Credit Agreement (Firstservice Corp)
Environmental Indemnity. Without limiting the generality of Section 12.15(a1, in consideration of the execution and delivery of the Term Loan Agreement by the Lenders and the making of the Loans, PSC hereby indemnifies, exonerates and holds the Lenders and each of their respective officers, directors, employees and agents (collectively, the "Indemnified Parties") hereof, each Loan Party agrees to, jointly free and severally, defend, indemnify, harmless from and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claimsactions, demandscauses of action, penalties, fines, liability (including strict liability)suits, losses, costs, liabilities and damages, costs and expenses incurred in connection therewith (includingirrespective of whether any such Indemnified Party is a party to the action for which indemnification hereunder is sought), including reasonable and documented out-of-pocket attorneys' fees and expenses disbursements (collectively, the "Environmental Liabilities"), incurred by the Indemnified Parties or any of one outside counsel and one local counsel them as a result of, or arising out of, or relating to:
(a) any investigation, litigation or proceeding related to any environmental cleanup, audit, compliance or other matter relating to the Agents and their Related Parties in each relevant jurisdictionprotection of the environment or the release by PCC or any Company of any Hazardous Material; or
(b) the presence on or under, one outside counsel and one local counsel to or the other Indemnitees (taken as a whole)in each relevant jurisdictionescape, consultant fees and laboratory fees)seepage, arising out of (i) leakage, spillage, discharge, emission, discharging or releases from, any Releases or threatened Releases (x) at any real property presently or formerly owned or operated by any Loan Party PCC or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) Company of any Hazardous Materials generated and disposed Material (including any losses, liabilities, damages, injuries, costs, expense or claims asserted or arising under any Environmental Law), regardless of by any Loan Party whether caused by, or within the control of, PCC or any Subsidiary Company; except, in each case, for any such Environmental Liabilities arising for the account of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws a particular Indemnified Party by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all reason of the foregoingrelevant Indemnified Party's negligence or misconduct, collectively, “Environmental Indemnified Matters”). Notwithstanding and if and to the foregoingextent that the foregoing undertaking may be unenforceable for any reason, the Loan Parties shall not have any obligation Borrower agrees to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder make the maximum contribution to the payment and satisfaction of each of the Environmental Liabilities which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionpermissible under applicable law.
Appears in 1 contract
Samples: Indemnification Agreement (Pegasus Communications Corp /)
Environmental Indemnity. Without limiting Section 12.15(a) hereofEach Co-obligor, each Loan Party agrees tohereby, jointly and severally, defend, indemnifyindemnifies and agrees to hold each Lender, and hold its respective officers, directors, employees, representatives, agents and affiliates (each an "Indemnified Party"), harmless the Indemnitees against against, and agrees to promptly pay on demand or reimburse each of them with respect to, any and all Environmental Liabilities and Costs and all other claims, demands, penaltiescauses of action, finesloss, liability damage, liabilities, costs and expenses of any and every kind or nature whatsoever, INCLUDING, WITHOUT LIMITATION, THOSE BASED UPON NEGLIGENCE, SOLE NEGLIGENCE, COMPARATIVE NEGLIGENCE, CONCURRENT NEGLIGENCE OR GROSS NEGLIGENCE, ASSERTED AGAINST OR INCURRED BY ANY OF THEM (including strict liabilityEXCLUDING, HOWEVER, ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSS, DAMAGE, LIABILITIES, COSTS AND EXPENSES OF AN INDEMNIFIED PARTY WHICH ARISE FROM OR RELATE TO THE WILLFUL MISCONDUCT OR THE GROSS NEGLIGENCE OF SUCH INDEMNIFIED PARTY), lossesby reason of or arising out of or in any way related to (a) the breach of any representation, damageswarranty or covenant as set forth herein regarding Environmental Laws, and (b) the failure of any Co-obligor or any of their subsidiaries to perform any obligation required to be performed pursuant to Environmental Laws (collectively "Environmental Indemnity Matters"). Without limiting the generality of the foregoing, each Co-obligor shall be obligated to pay or reimburse each Indemnified Party for all out-of-pocket costs and expenses (including, without limitation, reasonable and documented out-of-pocket attorneys' fees and expenses expenses) incurred by such Indemnified Party in the defense of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), any claims arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary Indemnity Matter at the time such costs and expenses are incurred. The provisions of any Loan Partythis Section 8.1(c) shall be payable upon written demand therefor, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out shall survive the final payment of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding Obligations and the foregoing, the Loan Parties termination of this Agreement and shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictioncontinue thereafter in full force and effect.
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a(i) hereof, the Borrower shall and shall cause each other Loan Party agrees to, jointly and severally, defend, to forthwith on demand fully indemnify, defend and hold save each Secured Party and each of their respective directors, officers, employees and agents, and any of them (in this Section 9.1(n) any one or more or all of such Persons is referred to as the "Indemnified Party"), harmless the Indemnitees from and against any and all Environmental Liabilities liabilities, losses, claims, damages and Costs expenses (including all reasonable fees of counsel on a solicitor and his own client basis and accountant fees and reasonable expenses, court costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses expenses) sustained, paid, incurred or suffered by the Indemnified Party arising in any manner whatsoever out of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken or as a whole)in each relevant jurisdictionresult of any environmental claims, consultant fees liabilities or obligations of any and laboratory fees), arising out of (i) any Releases every nature whatsoever relating to or threatened Releases (x) at any property presently or formerly owned or operated by affecting any Loan Party or any Subsidiary of any Loan Partythe Collateral, or any predecessor in interest, or (y) the property of any Hazardous Materials generated and disposed of by others where any Loan Party would be reasonably likely to have any liability in respect thereof under Applicable Law (all or any Subsidiary of any Loan Party, item or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all part of the foregoingforegoing liabilities, collectivelylosses, “Environmental Indemnified Matters”claims, damages and expenses are referred to in this Section 9.1(n) as "Loss"). Notwithstanding the generality of the foregoing, the Loan Parties shall not have be obliged to indemnify the Indemnified Party to the extent any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused Loss has been incurred by reason of the gross negligence or willful wilful misconduct of such IndemniteeIndemnified Party. The Borrower acknowledges on behalf of itself and each Loan Party that each Lender is entering into the provisions of this Section 9.1(n) on its own behalf and as agent and trustee for its directors, officers, employees and agents;
(ii) if any claim (in this Section 9.1(n) referred to as determined a "Claim") shall be asserted by any Person against the Indemnified Party which may give rise to a final non-appealable judgment Loss, the Indemnified Party shall promptly notify the Borrower of all particulars of such Claim upon learning of same. The failure to give any such notice, however, shall not affect any Loan Party's liability to indemnify the Indemnified Party unless such failure adversely and materially affects its ability to defend, object to, oppose or contest that Claim;
(iii) (A) each Loan Party shall at all times have the right, if no Default or Event of Default has occurred and is continuing, but shall not be required, at its sole expense, to resist, defend and compromise any Claim in the name of the Indemnified Party, by legal counsel reasonably acceptable to the Indemnified Party who will cooperate in such defence on a court reasonable basis; provided that the Indemnified Party shall have the right to participate in the defence or compromise of competent jurisdiction.any Claim by other legal counsel of its choosing if the Indemnified Party, acting 9617679.9 reasonably, determines it should so participate; provided that subject to Section 9.1(n)(iii)(B) the fees and disbursements of such other counsel shall be paid by the Borrower. The Indemnified Party shall not effect any settlement or compromise of any Claim without the prior written consent of the Borrower. Notwithstanding anything herein to the contrary, the Borrower on its own behalf must defend or must cause the applicable Loan Party to defend such claim, diligently and reasonably throughout the period while such Claim exists. If any Loan Party exercises its rights under this Section 9.1(n), the Borrower shall cause such Loan Party not to compromise or otherwise settle a Claim without the consent of the Indemnified Party suffering such Claim, which consent shall not be unreasonably withheld or delayed. The inability of the Loan Parties to pay such Claim in full shall constitute a sufficient reason to withhold such consent; and
Appears in 1 contract
Environmental Indemnity. Without limiting the generality of Section 12.15(a) hereof12.2 insofar as it pertains to environmental matters, each Loan Party agrees to, jointly and severally, defend, indemnify, the Borrower shall indemnify the Lender and hold it harmless the Indemnitees against any and all Environmental Liabilities losses, costs, expenses, liabilities, actions, suits, claims or damages of any and Costs and all other every kind sustained, paid or incurred by the Lender as a result of any environmental claims, demandsliabilities or obligations of every nature whatsoever affecting the Borrower or any of its Subsidiaries or the Property of either, penaltiesor the property of others where the Borrower or Subsidiary could be considered responsible under any Environmental Laws, fines, liability including:
(including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (ia) any Releases environmental harm or threatened Releases damage to or impairment of the Property (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, other Person's property) caused by the presence or any predecessor in interest, or (y) release of any Hazardous Materials generated and disposed of on the Property or by any Loan Party the Borrower or any Subsidiary of its Subsidiaries;
(b) any decrease or loss in value of the Property (or any other Person's property), occasioned by non-compliance by the Borrower or any of its Subsidiaries with Environmental Laws;
(c) the imposition or assertion of any Loan Party, or Security Interest including any predecessor in interest; (ii) any violations of expenses collectable as taxes affecting the Property under Environmental Laws by or relating to any Loan PartyGovernmental Authority; or
(iiid) any Environmental Action relating claim asserted or order issued by a Governmental Authority (including an enforcement order or an environmental protection order issued under Applicable Laws) against the Lender, an agent of the Lender or receiver or receiver-manager of the Property appointed under Security in respect of any matter referred to in paragraphs (a), (b), or (c) above, or for any Loan Party clean-up, restoration, well abandonment, reclamation or other securing or remedial action in respect of the Property (or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by other Persons property). Without limiting the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all generality of the foregoing, collectivelythe indemnities in Section 12.2 and this Section 12.3 shall extend to:
(e) legal fees on a solicitor and his own client basis, “Environmental Indemnified Matters”). Notwithstanding including the foregoingcosts of defending and/or counterclaiming or claiming over against third parties in respect of any action or matters, the Loan Parties shall not have and
(f) any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment amounts payable arising out of a court settlement of competent jurisdictionany action entered into between the Lender and any Person with or without the consent of the Borrower. These indemnities shall extend to the officers, directors, employees, agents, legal counsel, shareholders and assignees of the Lender as well as the Lender itself, and the Lender will hold the benefit of these indemnities in trust for such indemnified parties to the extent necessary to give effect hereto. A certificate of the Lender as to the amount of any such loss or expense shall be prima facie proof of the amount thereof. The provisions of and undertakings and indemnification set out in Section 12.2 and this Section 12.3 shall survive the payment and satisfaction of the Outstandings and interest thereon, and termination of this Agreement shall be deemed to be subject to the survival of these indemnities.
Appears in 1 contract
Environmental Indemnity. (i) Without in any way limiting the generality of the other provisions contained in this Section 12.15(a) hereof9.2, each Loan Party agrees tothe Borrower and the Subsidiary Guarantors, jointly and severally, agree to defend, protect, indemnify, save and hold harmless each Indemnified Person, whether as beneficiary of any of the Indemnitees Guarantee and Security Documents, as a mortgagee in possession, or as successor-in-interest to the Borrower or the Subsidiary Guarantors, by foreclosure deed or deed in lieu of foreclosure, or otherwise, from and against any and all Environmental Liabilities liabilities, obligations, losses, damages (excluding consequential damages and Costs and all other punitive claims, demands), penalties, finesfees, liability claims, actions, judgments, suits, costs, disbursements (including strict liability), losses, damages, costs reasonable legal fees and expenses and consultants’ fees and disbursements) and expenses (includingcollectively, reasonable and documented out-of-pocket fees and expenses “Losses”) of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdictionany kind or nature whatsoever that may at any time be incurred by, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionimposed on, consultant fees and laboratory fees)asserted or awarded against any such Indemnified Person directly or indirectly based on, or arising out of or resulting from, (iA) the actual or alleged presence of Hazardous Materials on, in, under or affecting all or any Releases portion of the Land whether or threatened Releases (x) at not the same originates or emanates from the Land or any property presently adjoining or formerly owned adjacent to the Land or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of from properties at which any Hazardous Materials generated and generated, stored or handled by the Borrower or the Subsidiary Guarantors were Released or disposed of by any Loan Party or any Subsidiary of any Loan Partyof, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iiiB) any Environmental Action Claim relating to any Loan Party the Land or any Subsidiary the Projects or (C) the exercise of any Loan Secured Party, or ’s rights under any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, provisions of the Guarantee and Security Documents (the “Environmental Indemnified Matters”). Notwithstanding , whether any of the foregoingIndemnified Matters arise before or after foreclosure of any of the Security Interests or other taking of title to all or any portion of the Collateral by any Secured Party, including (1) the Loan Parties shall not have costs of removal or remediation of any obligation and all Hazardous Materials from all or any portion of the Land, any property adjoining or adjacent to the Land if Environmental Law requires the incurrence of such costs, (2) additional costs required to take reasonable precautions to protect against the Release of Hazardous Materials on, in, under, from or affecting the Land into the environment in violation of applicable Environmental Law, including air, any Indemnitee under this subsection body of water, any other public domain or any surrounding areas, and (b3) regarding costs incurred to comply, in connection with all or any potential environmental matter covered hereunder which is caused by portion of the Land or any surrounding areas, with all applicable Environmental Laws with respect to Hazardous Materials, except to the extent that any such Indemnified Matter arises from (y) the bad faith, gross negligence or willful misconduct of such IndemniteeIndemnified Person, as determined or (z) notwithstanding anything in Section 9.2(b) to the contrary, any act or event first occurring on or in connection with a Project or the Land on which the Project is located after none of the Borrower (or any Affiliate) nor any Subsidiary Guarantor (or any Affiliate) has possession or control of, or presence at or on, such Project or Land.
(ii) In no event shall any site visit, observation, or testing by any Indemnified Person (or any representative of any such Person) be deemed to be a final non-appealable judgment of a court of competent jurisdictionrepresentation or warranty that Hazardous Materials are or are not present in, on, or under, the Land, or that there has been or shall be compliance with any Environmental Law. Neither the Borrower nor any other Person is entitled to rely on any site visit, observation, or testing by any Indemnified Person.
Appears in 1 contract
Environmental Indemnity. Without limiting (1) Subject to Section 12.15(a) hereof7.6(3), each Loan Party agrees toObligor hereby indemnifies and holds harmless the Trustee, jointly and severallyits directors, defendofficers, indemnifyemployees, and hold harmless agents, and all of their respective representatives, heirs, successors and assigns (collectively the Indemnitees “Indemnified Parties”) against any and all Environmental Liabilities and Costs and all other claimsloss, demandsexpenses, penaltiesclaim, finesproceedings, judgement, liability or asserted liability (including strict liability), losses, damages, liability and including costs and expenses of abatement and remediation of spills or releases of contaminants and including liabilities of the Indemnified Parties to third parties (includingincluding governmental agencies) in respect of bodily injuries, reasonable property damage, damage to or impairment of the environment or any other injury or damage and documented out-including liabilities of the Indemnified Parties to third parties for the third parties’ foreseeable and unforeseeable consequential damages) incurred as a result of-pocket fees :
(a) the administration of the trust created hereby; or
(b) the exercise by the Trustee of any rights hereunder or under the Security Interest; and which result from or relate, directly or indirectly, to:
(c) the presence or release of any contaminants, by any means or for any reason, on the Collateral, whether or not release or presence of the contaminants was under the control, care or management of the Obligor or of a previous owner, or of a tenant;
(d) any contaminant present on or released from any contiguous property to the Collateral; or
(e) the breach or alleged breach of any environmental laws by an Obligor.
(2) For purposes of this Section, “liability” shall include (i) liability of an Indemnified Party for costs and expenses of one outside counsel abatement and one local counsel to the Agents remediation of spills and their Related Parties in each relevant jurisdictionreleases of contaminants, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations liability of Environmental Laws an Indemnified Party to a third party to reimburse the third party for bodily injuries, property damages and other injuries or damages which the third party suffers, including (to the extent, if any, that the Indemnified Party is liable therefor) foreseeable and unforeseeable consequential damages suffered by or relating to any Loan Party; the third party, (iii) any Environmental Action relating to any Loan liability of the Indemnified Party or any Subsidiary of any Loan Partyfor damage suffered by the third party, or any predecessor in interest; (iv) any personal injury (including wrongful death) liability of an Indemnified Party for damage to or property damage (real or personal) arising out impairment of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; the environment and (v) any breach liability of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(ran Indemnified Party for court costs, expenses of alternative dispute resolution proceedings, and fees and disbursements of expert consultants and legal counsel on a solicitor and client basis.
(3) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all The obligations of the foregoing, collectively, “Environmental Obligors to the Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties under part (1) of this Section 7.6 shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionbe joint and several.
Appears in 1 contract
Samples: Restructuring Agreement
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, GBG and the Guarantors jointly and severallyseverally shall indemnify the Trustee, defendits directors, indemnifyofficers, employees, and hold harmless agents, and all of their successors and assigns (collectively the Indemnitees "Indemnified Parties") against any and all Environmental Liabilities and Costs and all loss (other claimsthan a loss of profit), demandsexpense, penaltiesclaim, fines, liability or asserted liability (including strict liability), losses, damages, ) and including costs and expenses of abatement and remediation of spills or releases of contaminants and including liabilities of the Indemnified Parties to third parties (includingincluding governmental agencies) in respect of bodily injuries, reasonable property damage, damage to or impairment of the environment or any other injury or damage and documented out-of-pocket fees including liabilities of the Indemnified Parties to third parties for the third parties' foreseeable and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken unforeseeable consequential damages incurred as a whole)in each relevant jurisdictionresult of: (a) the administration of the trust created hereby; (b) the exercise by the Trustee of any rights hereunder; which result from or relate, consultant fees and laboratory fees)directly or indirectly, arising out of to: (i) the presence or release of any Releases or threatened Releases (x) at any property presently or formerly owned or operated contaminants, by any Loan Party means or for any Subsidiary reason, on the GBG Charged Property and property charged by the Guarantors hereunder, whether or not release or presence of any Loan Partythe contaminants was under control, care or management of GBG or the Guarantors or of a previous owner, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interesta tenant; (ii) any violations of Environmental Laws contaminant present on or released from any contiguous property to the GBG Charged Property and property charged by the Guarantors hereunder; or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party the breach or any Subsidiary alleged breach of any Loan Partyenvironmental laws by GBG or the Guarantors. For the purposes of this Section 12.16, "liability" shall include (i) liability of an Indemnified Party for costs and expenses of abatement and remediation of spills and releases of contaminants, (ii) liability of an Indemnified Party to a third party to reimburse the third party for bodily injuries, property damages and other injuries or any predecessor in interestdamages which the third party suffers, including (to the extent, if any, that the Indemnified Party is liable therefor) foreseeable and unforeseeable consequential damages suffered by the third party and (iii) liability of the Indemnified Party for damage to or impairment of the environment; and (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out liability of exposure to Hazardous Materials usedan Indemnified Party for court costs, handledexpenses of alternative dispute resolution proceedings, generated, transported or disposed by any Loan Party or any Subsidiary and fees and disbursements of any Loan Party, or any predecessor in interest; expert consultants and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by legal counsel on a final non-appealable judgment of a court of competent jurisdictionsolicitor and client basis.
Appears in 1 contract
Samples: Senior Secured Note Indenture (Great Basin Gold LTD)
Environmental Indemnity. Without limiting Section 12.15(a) hereofEach of the Borrowers hereby indemnifies ----------------------- Lender, each Loan Party agrees to, jointly its successors and severally, defend, indemnifyassignees, and agrees to hold Lender harmless the Indemnitees from and against any and all Environmental Liabilities and Costs and all other claimslosses, demands, penalties, fines, liability (including strict liability), lossesliabilities, damages, costs injuries, costs, expenses and expenses claims of any and every kind whatsoever (including, reasonable without limitation, court costs and documented out-of-pocket fees and expenses of one outside counsel and one local counsel attorneys' fees) which at any time or from time to the Agents and their Related Parties in each relevant jurisdictiontime may be paid, one outside counsel and one local counsel to the other Indemnitees (taken incurred or suffered by, or asserted against, Lender for, with respect to, or as a whole)in each relevant jurisdictiondirect or indirect result of the violation by such Borrower, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party other obligor or any Subsidiary of such Borrower's Subsidiaries, of any Loan Partylaws, including but not limited to, the Environmental Laws or any laws or regulations relating to Hazardous Materials, treatment, storage, disposal, generation and transportation, air, water and noise pollution, soil or ground or water contamination, the handling, storage or release into the environment of Hazardous Materials; or with respect to, or as a direct or indirect result of the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from, properties utilized by such Borrower, any other obligor or any of such Borrower's Subsidiaries in the conduct of their respective business into or upon any land, the atmosphere, or any predecessor in interestwatercourse, body of water or (y) wetland, of any Hazardous Materials generated and disposed of by (including, without limitation, any Loan Party losses, liabilities, damages, injuries, costs, expenses or any Subsidiary of any Loan Party, claims asserted or any predecessor in interest; (iiarising under the Environmental Laws) any violations of Environmental Laws by or relating provided that such Borrower shall not be liable to any Loan Party; (iii) any Environmental Action relating indemnified party with respect to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) matter arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the from such indemnified party's gross negligence or willful misconduct wilful misconduct; and the provisions of such Indemnitee, as determined by a final non-appealable judgment and undertakings and indemnification set out in this Section shall survive the satisfaction and payment of a court the Liabilities and the termination of competent jurisdictionthis Agreement.
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising (but limited, in the case of legal fees and expenses, to one counsel to such Indemnitees taken as a whole and, solely in the case of a conflict of interest or perceived conflict of interest, one additional counsel to all similarly-situated affected Indemnitees, taken as a whole (and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such persons, taken as a whole and, solely in the case of such conflict of interest or perceived conflict of interest, one additional local counsel to all similarly-situated affected Indemnitees taken as a whole))arising out of (i) any Releases or threatened Releases (xA) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (yB) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan PartyLaws; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”7.01(i). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Financing Agreement (OTG EXP, Inc.)
Environmental Indemnity. Without limiting Section 12.15(a(a) hereofSubject to subsection 12.19(c), each Loan Party agrees tothe Corporation hereby indemnifies the Debentureholders, jointly the Trustee and severallythe Collateral Agent, defendtheir respective directors, indemnifyofficers, employees, and hold harmless agents, and all of their successors and assigns (collectively, the Indemnitees "INDEMNIFIED PARTIES") against any and all Environmental Liabilities and Costs and all other claimsloss, demandsexpenses, penaltiesclaim, fines, liability or asserted liability (including strict liability), losses, damages, liability and including costs and expenses of abatement and remediation of spills or releases or releases of contaminants and including liabilities of the Indemnified Parties to third parties (includingincluding governmental agencies) in respect of bodily injuries, reasonable property damage, damage to or impairment of the environment or any other injury or damage and documented out-including liabilities of the Indemnified Parties to third parties for the third parties' foreseeable and unforeseeable consequential damages) incurred as a result of-pocket fees :
(i) the administration of the trust created hereby; and
(ii) the exercise by the Trustee of any rights or obligations hereunder or by the Collateral Agent of its rights or obligations under the Collateral Agency Agreement or the Security; which result from or relate, directly or indirectly, to the breach or alleged breach of any environmental laws by the Corporation.
(b) For purposes of this Section 12.19, "LIABILITY" shall include (i) liability of an Indemnified Party for costs and expenses of one outside counsel abatement and one local counsel to the Agents remediation of spills and their Related Parties in each relevant jurisdictionreleases of contaminants, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations liability of Environmental Laws an Indemnified Party to a third party to reimburse the third party for bodily injuries, property damages and other injuries or damages which the third party suffers, including (to the extent, if any, - 61 - that the Indemnified party is liable therefor) foreseeable and unforeseeable consequential damages suffered by or relating to any Loan Party; the third party, and (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all liability of the foregoingIndemnified Party for damage to or impairment of the environment.
(c) In no event shall the Corporation be liable to indemnify an Indemnified Party against any loss, collectivelyexpense, “Environmental Indemnified Matters”). Notwithstanding claims, liability or asserted liability to the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by extent resulting from the gross negligence or willful wilful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionthe Indemnified Party.
Appears in 1 contract
Environmental Indemnity. Without limiting (a) Subject to the limitations in this Section 12.15(a) hereof11.3, each Loan Party agrees tothe Borrowers agree to and do hereby, jointly and severally, defend, indemnify, indemnify and hold save harmless the Indemnitees Indemnified Parties from and against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses of any and every nature and kind whatsoever which at any time or from time to time may be paid by or incurred by them (without duplication and net of Tax Recoveries by any of the Indemnified Parties) for, with respect to, or as a direct or indirect result of the disposal, refining, generation, manufacture, production, storage, handling, presence, treatment, transfer, release, processing or transportation of any Hazardous Material in, on or under any property of whatsoever nature or kind of a Borrower, or any Subsidiary thereof, or the discharge, emission, spill or disposal from such property into or upon any land, the atmosphere or any watercourse, body of water or wetland of any Hazardous Material where it has been proven that the source of the Hazardous Material is the said property to the extent that such losses, damages, costs and expenses arise out of the relationship between the Indemnified Parties and a Borrower reflected herein including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of without limitation:
(i) any Releases the cost of defending and/or counterclaiming or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary claiming over against third parties in respect of any Loan Party, action or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; matter referred to above;
(ii) any violations cost, liability or damage arising out of Environmental Laws by or relating any settlement of any action referred to above to which any Loan PartyIndemnified Party is a party; and
(iii) any Environmental Action relating to any Loan Party or any Subsidiary costs of any Loan Partycleanup in connection with any matter referred to above.
(b) In the event that any claim, action, order, suit or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials usedproceeding, handledincluding, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by without limiting the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all generality of the foregoing, collectivelyany inquiry or investigation (whether formal or informal) is brought or instituted against any Indemnified Party, the Indemnified Party shall promptly notify the Borrowers and the Borrowers shall promptly retain counsel who shall be reasonably satisfactory to the Indemnified Parties to represent the Indemnified Parties in such claim, action, order, suit or proceeding and the Borrowers shall pay all of the reasonable fees and disbursements of such counsel relating to such claim, action, order, suit or proceeding.
(c) In any such claim, action, order, suit or proceeding, the Indemnified Parties shall have the rights to retain other counsel to act on their behalf, provided that the fees and disbursements of such other counsel shall be paid by the Indemnified Parties unless: (i) the Borrowers and the Indemnified Parties shall have mutually agreed to the retention of such other counsel; or (ii) the named parties to any such claim, action, order, suit or proceeding (including any added, third or impleaded parties) include the Borrowers and the Indemnified Parties and representation of all such parties by the same counsel would be inappropriate due to actual or potential differing interests between them (such as the availability of different defences).
(d) Notwithstanding anything contained in this Section 11.3, none of the Indemnified Parties shall agree to any settlement of any such claim, action, order, suit or proceeding unless the Borrowers shall have consented in writing thereto, and the Borrowers shall not be liable for any settlement of any such claim, action, order, suit or proceeding unless they have consented in writing thereto. The Borrowers shall be entitled to settle any such claim, action, order, suit or proceeding on any terms it deems appropriate.
(e) The provisions of this Section 11.3 shall survive the Revolving Facilities Maturity Date, and the repayment of all Borrowings hereunder and the satisfaction by the Borrowers of all other obligations hereunder.
(f) For the purposes of this Section 11.3, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have Tax Recoveries” of any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment Person in respect of a court payment or outlay made or incurred by such Person means the Taxes that would be saved or recovered by such Person and the creation or increase of competent jurisdictiona loss or credit for Tax purposes which may be used to reduce Taxes payable by such Person.
Appears in 1 contract
Samples: Credit Agreement (FirstService Corp)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party the Borrower agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by any Loan Party or relating to any Subsidiary of any Loan Party, or any predecessor in interest; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties Borrower in Section 6.01(r) or the breach of any covenant made by the Loan Parties Borrower in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties Borrower shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by or attributable to the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Credit Agreement (KCS Energy Inc)
Environmental Indemnity. Without in any way limiting the indemnity obligation set out in Section 12.15(a) hereof8.18, each Loan Party agrees to, jointly and severally, defend, indemnify, the Borrower shall at all times indemnify and hold harmless the Indemnitees each Indemnified Person against and from any and all Environmental Liabilities and Costs and all other claimsLosses of any nature whatsoever suffered or incurred by any Indemnified Person upon realization upon any Loan Document or the Borrower's, demandsany Restricted Subsidiaries' or any English Finance Structure Companies' assets, penaltiesor as a result of any order, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel investigation or action by any Governmental Authority relating to the Agents and their Related Parties Borrower, any Restricted Subsidiary or any English Finance Structure Company or its business or assets, or as mortgagee in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out possession of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating as successor-in-interest to any Loan Party by foreclosure deed or deed in lieu of foreclosure, or under or on account of any Environmental Law or Environmental Activity including the assertion of any Encumbrance thereunder, with respect to any one or more of the following:
(a) the Release or threat of Release of a Contaminant, or the presence of any Contaminant at, on or near any real property owned, leased or controlled by the Borrower, any Restricted Subsidiary or any English Finance Structure Company, whether or not the same originates or emanates from such property or any contiguous real property;
(b) the Release of a Contaminant owned by, or under the charge, management or control of the Borrower, any Restricted Subsidiary of or any Loan Party, English Finance Structure Company or any predecessor in interest; of or assignor to the Borrower or any Restricted Subsidiary, at a place other than real property owned, leased or controlled by the Borrower, any Restricted Subsidiary or any English Finance Structure Company;
(ivc) any costs of removal or remedial action incurred by any Governmental Authority or any costs or damages incurred by any Person as a result of injury to, destruction of or loss of natural resources in relation to any real property owned, leased or controlled by the Borrower, any Restricted Subsidiary or any English Finance Structure Company or any -88- contiguous real property or elsewhere, including reasonable costs of assessing injury, destruction or loss;
(d) liability for personal injury (including wrongful death) or property damage (real arising under any statutory or personal) arising out common law, including damages assessed for the maintenance of exposure to Hazardous Materials useda public or private nuisance or for the carrying on of a dangerous activity at, handledon or near any property owned, generatedleased or controlled by the Borrower, transported or disposed by any Loan Party Restricted Subsidiary or any Subsidiary English Finance Structure Company or elsewhere; and
(e) any other environmental matter within the jurisdiction of any Loan Party, Governmental Authority; provided that no indemnification shall inure to the extent suffered or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made incurred by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all Indemnified Person as a result of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemniteethe Indemnified Person. The obligations of the Borrower under this Section shall arise upon the discovery of the presence of any Contaminant, as determined by a final non-appealable judgment whether or not any Governmental Authority has taken or threatened any action in connection with the presence of a court any Contaminant. The Borrower shall be liable for any obligation arising under this Section even if the amount of competent jurisdictionliability incurred exceeds the amount of the Credit Facility outstanding or available at any time.
Appears in 1 contract
Environmental Indemnity. Without limiting (a) Subject to the limitations in this Section 12.15(a) hereof11.3, each Loan Party agrees tothe Borrowers agree to and do hereby, jointly and severally, defend, indemnify, indemnify and hold save harmless the Indemnitees Agents and the Lenders and their officers, directors, employees, agents and shareholders in such capacities (the "Indemnified Parties") from and against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses of any and every nature and kind whatsoever which at any time or from time to time may be paid by or incurred by them (without duplication and net of Tax Recoveries by any of the Indemnified Parties) for, with respect to, or as a direct or indirect result of the disposal, refining, generation, manufacture, production, storage, handling, presence, treatment, transfer, release, processing or transportation of any Hazardous Material in, on or under any property of whatsoever nature or kind of a Borrower, or any Subsidiary thereof, or the discharge, emission, spill or disposal from such property into or upon any land, the atmosphere or any watercourse, body of water or wetland of any Hazardous Material where it has been proven that the source of the Hazardous Material is the said property to the extent that such losses, damages, costs and expenses arise out of the relationship between the Indemnified Parties and a Borrower reflected herein including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of without limitation:
(i) any Releases the cost of defending and/or counterclaiming or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary claiming over against third parties in respect of any Loan Party, action or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; matter referred to above;
(ii) any violations cost, liability or damage arising out of Environmental Laws by or relating any settlement of any action referred to above to which any Loan PartyIndemnified Party is a party; and
(iii) any Environmental Action relating to any Loan Party or any Subsidiary costs of any Loan Partycleanup in connection with any matter referred to above.
(b) In the event that any claim, action, order, suit or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials usedproceeding, handledincluding, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by without limiting the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all generality of the foregoing, collectively, “Environmental any inquiry or investigation (whether formal or informal) is brought or instituted against any Indemnified Matters”). Notwithstanding the foregoingParty, the Loan Indemnified Party shall promptly notify the Borrowers and the Borrowers shall promptly retain counsel who shall be reasonably satisfactory to the Indemnified Parties to represent the Indemnified Parties in such claim, action, order, suit or proceeding and the Borrowers shall pay all of the reasonable fees and disbursements of such counsel relating to such claim, action, order, suit or proceeding.
(c) In any such claim, action, order, suit or proceeding, the Indemnified Parties shall not have any obligation the rights to retain other counsel to act on their behalf, provided that the fees and disbursements of such other counsel shall be paid by the Indemnified Parties unless:
(i) the Borrowers and the Indemnified Parties shall have mutually agreed to the retention of such other counsel; or (ii) the named parties to any Indemnitee under this subsection such claim, action, order, suit or proceeding (bincluding any added, third or impleaded parties) regarding any potential environmental matter covered hereunder which is caused include the Borrowers and the Indemnified Parties and representation of all such parties by the gross negligence same counsel would be inappropriate due to actual or willful misconduct potential differing interests between them (such as the availability of different defences).
(d) Notwithstanding anything contained in this Section 11.3, none of the Indemnified Parties shall agree to any settlement of any such Indemniteeclaim, as determined by a final non-appealable judgment action, order, suit or proceeding unless the Borrowers shall have consented in writing thereto, and the Borrowers shall not be liable for any settlement of a court of competent jurisdictionany such claim, action, order, suit or proceeding unless they have consented in writing thereto. The Borrowers shall be entitled to settle any such claim, action, order, suit or proceeding on any terms it deems appropriate.
Appears in 1 contract
Samples: Credit Agreement (Firstservice Corp)
Environmental Indemnity. Without limiting Section 12.15(a) hereofThe Corporation hereby indemnifies and holds harmless the Trustee, each Loan Party agrees toits directors, jointly and severallyofficers, defend, indemnifyemployees, and hold harmless agents, and all of their respective representatives, heirs, successors and assigns (collectively the Indemnitees "Indemnified Parties") against any and all Environmental Liabilities and Costs and all other claimsloss, demandsexpenses, penaltiesclaim, finesproceedings, judgment, liability or asserted liability (including strict liability), losses, damages, liability and including costs and expenses of abatement and remediation of spills or releases of contaminants and including liabilities of the Indemnified Parties to third parties (includingincluding governmental agencies) in respect of bodily injuries, reasonable property damage, damage to or impairment of the environment or any other injury or damage and documented out-including liabilities of the Indemnified Parties to third parties for the third parties' foreseeable and unforeseeable consequential damages) incurred as a result of-pocket fees :
(a) the administration of the trust created hereby;
(b) the exercise by the Trustee of any rights hereunder or under this Indenture and any documents referenced herein which result from or relate, directly or indirectly, to:
(i) the presence or release of any contaminants, by any means or for any reason, on the mortgaged property under this Indenture and any documents referenced herein whether or not release or presence of the contaminants was under the control, care or management of the Corporation or of a previous owner, or of a tenant;
(ii) any contaminant present on or released from any contiguous property to the mortgaged property under this Indenture and any documents referenced herein; or
(iii) the breach or alleged breach of any environmental laws by the Corporation. For purposes of this Section, “liability” shall include: (i) liability of an Indemnified Party for costs and expenses of one outside counsel abatement and one local counsel to the Agents remediation of spills and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out releases of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestcontaminants; (ii) any violations liability of Environmental Laws an Indemnified Party to a third party to reimburse the third party for bodily injuries, property damages and other injuries or damages which the third party suffers, including (to the extent, if any, that the Indemnified Party is liable therefor) foreseeable and unforeseeable consequential damages suffered by or relating to any Loan Partythe third party; and (iii) any Environmental Action relating to any Loan liability of the Indemnified Party or any Subsidiary of any Loan Party, or any predecessor in interestfor damage suffered by the third party; (iv) any personal injury (including wrongful death) liability of an Indemnified Party for damage to or property damage (real or personal) arising out impairment of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestthe environment; and (v) any breach liability of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach an Indemnified Party for court costs, expenses of any covenant made by the Loan Parties in Section 7.01(j) (all alternative dispute resolution proceedings, and fees and disbursements of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by expert consultants and legal counsel on a final non-appealable judgment of a court of competent jurisdictionsolicitor and client basis.
Appears in 1 contract
Samples: First Supplemental Convertible Debenture Indenture (Mogo Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, The Borrower shall at all times indemnify and hold the Lender harmless the Indemnitees against and from any and all Environmental Liabilities and Costs and all other claims, demandssuits, penaltiesactions, finesdebts, liability (including strict liability)damages, costs, losses, damagesobligations, costs judgments, charges, and expenses (includingexpenses, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel any nature whatsoever suffered or incurred by the Lender, whether upon realization of the Security, or as lender to the Agents and their Related Parties in each relevant jurisdictionBorrower hereunder, one outside counsel and one local counsel or as successor to or assignee of any right or interest of the other Indemnitees (taken Borrower, or as a whole)in each relevant jurisdictionresult of any order, consultant fees investigation or action by any Governmental Authority relating to a Loan Party its business or as privileged or hypothecary creditor or mortgagee in possession of the Lands or as successor or successor-in-interest to a Loan Party as a result of any taking of possession of the Lands or by foreclosure deed or deed in lieu of foreclosure or by any other means relating to a Loan Party, under or on account of any breach of any Environmental Law which occurred prior to or during the time that a Loan Party had control or possession of the Lands (and laboratory feesexcept as occasioned by the Lender's negligence or willful misconduct), arising out with respect to:
(a) the Release of (i) a Contaminant, the threat of the Release of any Releases Contaminant, or threatened Releases (x) at the presence of any property presently Contaminant affecting the Lands, whether or formerly owned not the same originates or operated by any Loan Party emanates from the Lands or any Subsidiary contiguous real or immovable property located thereon, including any loss of value of the Lands as a result of any of the foregoing;
(b) the Release of a Contaminant owned by, or under the charge, management or control of a Loan Party, or any predecessor in interestor assignor of a Loan Party;
(c) any costs incurred by any Governmental Authority or any other Person or damages from injury to, destruction of, or (y) loss of any Hazardous Materials generated and disposed natural resources in relation to, the Lands, including reasonable costs of by any Loan Party assessing such injury, destruction or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) loss incurred under any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; Laws;
(ivd) any liability for personal injury (including wrongful death) or property damage arising by reason of any civil law offenses or quasi-offenses or under any statutory or common law tort or similar theory, including, without limitation, damages assessed for the maintenance of a public or private nuisance or for the carrying on of a dangerous activity at, near, or with respect to the Lands; and/or
(real e) any other environmental matter affecting the Lands or personal) arising out the operations and activities of exposure to Hazardous Materials used, handled, generated, transported or disposed by any a Loan Party or any Subsidiary within the jurisdiction of any federal, provincial, municipal, state or local environmental agency; The obligations of a Loan Party, Party under this Section 11.4 shall arise upon the discovery of the presence or any predecessor in interest; and (v) any breach Release of any warranty Contaminant at, upon, under, over, within or representation regarding environmental matters made by with respect to the Loan Parties Lands, whether or not any Governmental Authority has taken or threatened any action in Section 6.01(r) or connection with the breach presence of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionContaminant.
Appears in 1 contract
Samples: Credit Agreement (High Tide Inc.)
Environmental Indemnity. (i) Without in any way limiting the generality of the other provisions contained in this Section 12.15(a) hereof9.2, each Loan Party the Borrower agrees toto defend, jointly and severally, defendprotect, indemnify, save and hold harmless each Indemnified Person, whether as beneficiary of any of the Indemnitees Security Documents, as a mortgagee in possession, or as successor-in-interest to the Borrower by foreclosure deed or deed in lieu of foreclosure, or otherwise, from and against any and all Environmental Liabilities liabilities, obligations, losses, damages (including foreseeable and Costs unforeseeable consequential damages and all other punitive claims, demands), penalties, finesfees, liability claims, actions, judgments, suits, costs, disbursements (including strict liability)including, losseswithout limitation, damages, costs reasonable legal fees and expenses and consultants' fees and disbursements) and expenses (includingcollectively, reasonable and documented out-of-pocket fees and expenses "Losses") of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdictionany kind or nature whatsoever that may at any time be incurred by, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionimposed on, consultant fees and laboratory fees)asserted or awarded against any such Indemnified Person directly or indirectly based on, or arising out of or resulting from, (iA) the actual or alleged presence of Hazardous Materials on, in, under or affecting all or any portion of any Property of the Borrower, PGE Utility or any member of the NEG Group whether or not the same originates or emanates from any such Property or any property adjoining or adjacent to any such Property or from properties at which any Hazardous Materials generated, stored or handled by the Borrower were Released or disposed of, (B) any Releases Environmental Claim relating to any such Property or threatened Releases (C) the exercise of any Secured Party's rights under any of the provisions of the Security Documents (the "Indemnified Matters"), whether any of the Indemnified Matters arise before or after foreclosure of any of the security interests or other taking of title to all or any portion of the Collateral by the Collateral Agent or any Lender, including, without limitation, (x) at the costs of removal of any and all Hazardous Materials from all or any portion of any such Property or any property presently adjoining or formerly owned or operated by adjacent to any Loan Party or any Subsidiary of any Loan Partysuch Property, or any predecessor in interest, or (y) additional costs required to take reasonable precautions to protect against the Release of Hazardous Materials on, in, under or affecting any such Property into the air, any body of water, any other public domain or any surrounding areas, and (z) costs incurred to comply, in connection with all or any portion of any Hazardous Materials generated and disposed of by any Loan Party such Property or any Subsidiary of any Loan Partysurrounding areas, or any predecessor in interest; (ii) any violations of with all applicable Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure with respect to Hazardous Materials usedMaterials, handled, generated, transported or disposed by except to the extent that any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental such Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by Matter arises from the gross negligence or willful misconduct of such IndemniteeIndemnified Person.
(ii) In no event shall any site visit, observation, or testing by any Indemnified Person (or any representative of any such Person) be deemed to be a representation or warranty that Hazardous Materials are or are not present in, on, or under, any Property of the Borrower or any member of the NEG Group, or that there has been or shall be compliance with any Environmental Law. Neither the Borrower nor any other Person is entitled to rely on any site visit, observation, or testing by any Indemnified Person. No Indemnified Person owes any duty of care to protect the Borrower or any other Person against, or to inform the Borrower or any other Person of, any Hazardous Materials or any other adverse condition affecting any such Property. No Indemnified Person shall be obligated to disclose to the Borrower or any other Person any report or findings made as determined a result of, or in connection with, any site visit, observation, or testing by a final non-appealable judgment any Indemnified Person. (c) Survival; Defense. The obligations in this Section 9.2 shall survive payment of a court the Loans and all other obligations hereunder. At the election of competent jurisdiction.any Indemnified Person, the Borrower's indemnification obligations under this Section 9.2 shall include the obligation to defend such Indemnified Person using legal counsel satisfactory to such Indemnified Person, at the sole cost and expense of the Borrower. All amounts owing under this Section 9.2 shall be paid within 30 days after demand. (d)
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Environmental Indemnity. (i) Without in any way limiting the generality of the other provisions contained in this Section 12.15(a) hereof9.2, each Loan Party the Borrower agrees toto defend, jointly and severally, defendprotect, indemnify, save and hold harmless each Indemnified Person, whether as beneficiary of any of the Indemnitees Security Documents, as a mortgagee in possession, or as successor-in-interest to the Borrower by foreclosure deed or deed in lieu of foreclosure, or otherwise, from and against any and all Environmental Liabilities liabilities, obligations, losses, damages (including foreseeable and Costs unforeseeable consequential damages and all other punitive claims, demands), penalties, finesfees, liability claims, actions, judgments, suits, costs, disbursements (including strict liability)including, losseswithout limitation, damages, costs reasonable legal fees and expenses and consultants' fees and disbursements) and expenses (includingcollectively, reasonable and documented out-of-pocket fees and expenses "Losses") of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdictionany kind or nature whatsoever that may at any time be incurred by, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionimposed on, consultant fees and laboratory fees)asserted or awarded against any such Indemnified Person directly or indirectly based on, or arising out of or resulting from, (iA) the actual or alleged presence of Hazardous Materials on, in, under or affecting all or any portion of any Property of the Borrower or any member of the NEG Group whether or not the same originates or emanates from any such Property or any property adjoining or adjacent to any such Property or from properties at which any Hazardous Materials generated, stored or handled by the Borrower were Released or disposed of, (B) any Releases Environmental Claim relating to any such Property or threatened Releases (C) the exercise of any Secured Party's rights under any of the provisions of the Security Documents (the "Indemnified Matters"), whether any of the Indemnified Matters arise before or after foreclosure of any of the security interests or other taking of title to all or any portion of the Collateral by the Collateral Agent or any Lender, including, without limitation, (x) at the costs of removal of any and all Hazardous Materials from all or any portion of any such Property or any property presently adjoining or formerly owned or operated by adjacent to any Loan Party or any Subsidiary of any Loan Partysuch Property, or any predecessor in interest, or (y) additional costs required to take reasonable precautions to protect against the Release of Hazardous Materials on, in, under or affecting any such Property into the air, any body of water, any other public domain or any surrounding areas, and (z) costs incurred to comply, in connection with all or any portion of any Hazardous Materials generated and disposed of by any Loan Party such Property or any Subsidiary of any Loan Partysurrounding areas, or any predecessor in interest; (ii) any violations of with all applicable Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure with respect to Hazardous Materials usedMaterials, handled, generated, transported or disposed by except to the extent that any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental such Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by Matter arises from the gross negligence or willful misconduct of such IndemniteeIndemnified Person.
(i) In no event shall any site visit, observation, or testing by any Indemnified Person (or any representative of any such Person) be deemed to be a representation or warranty that Hazardous Materials are or are not present in, on, or under, any Property of the Borrower or any member of the NEG Group, or that there has been or shall be compliance with any Environmental Law. Neither the Borrower nor any other Person is entitled to rely on any site visit, observation, or testing by any Indemnified Person. No Indemnified Person owes any duty of care to protect the Borrower or any other Person against, or to inform the Borrower or any other Person of, any Hazardous Materials or any other adverse condition affecting any such Property. No Indemnified Person shall be obligated to disclose to the Borrower or any other Person any report or findings made as determined a result of, or in connection with, any site visit, observation, or testing by a final non-appealable judgment of a court of competent jurisdictionany Indemnified Person.
Appears in 1 contract
Samples: Credit Agreement (Pg&e Corp)
Environmental Indemnity. Without limiting (1) Subject to Section 12.15(a) hereof9.6(3), each Loan Party agrees toObligor hereby indemnifies and holds harmless the Trustee, jointly and severallyits directors, defendofficers, indemnifyemployees, and hold harmless agents, and all of their respective representatives, heirs, successors and assigns (collectively the Indemnitees "Indemnified Parties") against any and all Environmental Liabilities and Costs and all other claimsloss, demandsexpenses, penaltiesclaim, finesproceedings, judgement, liability or asserted liability (including strict liability), losses, damages, liability and including costs and expenses of abatement and remediation of spills or releases of contaminants and including liabilities of the Indemnified Parties to third parties (includingincluding governmental agencies) in respect of bodily injuries, reasonable property damage, damage to or impairment of the environment or any other injury or damage and documented out-including liabilities of the Indemnified Parties to third parties for the third parties' foreseeable and unforeseeable consequential damages) incurred as a result of-pocket fees :
(a) the administration of the trust created hereby; or
(b) the exercise by the Trustee of any rights hereunder or under the Security Interest; and which result from or relate, directly or indirectly, to:
(c) the presence or release of any contaminants, by any means or for any reason, on the Collateral, whether or not release or presence of the contaminants was under the control, care or management of the Obligor or of a previous owner, or of a tenant;
(d) any contaminant present on or released from any contiguous property to the Collateral; or
(e) the breach or alleged breach of any environmental laws by an Obligor.
(2) For purposes of this Section, "liability" shall include (i) liability of an Indemnified Party for costs and expenses of one outside counsel abatement and one local counsel to the Agents remediation of spills and their Related Parties in each relevant jurisdictionreleases of contaminants, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations liability of Environmental Laws an Indemnified Party to a third party to reimburse the third party for bodily injuries, property damages and other injuries or damages which the third party suffers, including (to the extent, if any, that the Indemnified Party is liable therefor) foreseeable and unforeseeable consequential damages suffered by or relating to any Loan Party; the third party, (iii) any Environmental Action relating to any Loan liability of the Indemnified Party or any Subsidiary of any Loan Partyfor damage suffered by the third party, or any predecessor in interest; (iv) any personal injury (including wrongful death) liability of an Indemnified Party for damage to or property damage (real or personal) arising out impairment of exposure to Hazardous Materials usedthe environment, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach liability of any warranty an Indemnified Party for court costs, expenses of alternative dispute resolution proceedings, and fees and disbursements of expert consultants and legal counsel on a solicitor and client basis.
(3) It is understood and agreed that obligations of each Obligor to the Indemnified Parties under Section 9.6(1) shall survive the resignation or representation regarding environmental matters made by removal of the Loan Parties in Section 6.01(r) Trustee or the breach termination or discharge of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionIndenture.
Appears in 1 contract
Samples: Trust Indenture (Security Devices International Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereofBorrower covenants and agrees, each Loan Party agrees toat Xxxxxxxx's ----------------------- sole cost and expense, jointly and severally, defend, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts acceptable to Lender) and hold each Indemnified Party harmless the Indemnitees from and against any and all Environmental Liabilities and Costs and all other liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, penaltiesdefenses, finesjudgments, liability (including strict liability)suits, lossesproceedings, damagescosts, costs and disbursements or expenses of any kind or of any nature whatsoever (including, reasonable without limitation, attorneys', consultants' and documented out-of-pocket experts' fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties disbursements incurred in each relevant jurisdictioninvestigating, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictiondefending, consultant fees and laboratory fees)settling or prosecuting any claim, arising out of (ilitigation or proceeding) any Releases or threatened Releases (x) which may at any property presently time be imposed upon, incurred by or formerly owned asserted or operated by any Loan awarded against such Indemnified Party or any Subsidiary the Property and arising directly or indirectly from or out of: (A) the Release or Threat of any Loan Party, or any predecessor in interest, or (y) Release of any Hazardous Materials generated and disposed of by any Loan Party on, in, under or affecting all or any Subsidiary portion of the Property or any surrounding areas, regardless of whether or not caused by or within the control of Borrower; (B) the violation of any Loan PartyEnvironmental Laws relating to or affecting the Property or the Borrower, whether or any predecessor in interestnot caused by or within the control of Borrower; (iiC) the failure of Borrower to comply fully with the terms and conditions of this Paragraph; (D) the violation of any violations of Environmental Laws by in connection with other real property of Borrower which gives or relating may give rise to any Loan Partyrights whatsoever in any party with respect to the Property by virtue of any Environmental Laws; (iiiE) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made representation or warranty contained in this Paragraph or (F) the enforcement of this Paragraph, including, without limitation (i) the costs of assessment, containment and/or removal of any and all Hazardous Materials from all or any portion of the Property or any surrounding areas, (ii) the costs of any actions taken in response to a Release or Threat of Release of any Hazardous Materials on, in, under or affecting all or any portion of the Property or any surrounding areas to prevent or minimize such Release or Threat of Release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and (iii) costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any surrounding areas. Xxxxxx's rights under this Paragraph shall be in addition to all other rights of Lender under this Security Deed, the Note, the Construction/Term Loan Agreement, and the other Loan Documents and payments by Borrower under this Paragraph shall not reduce Borrower's obligations and liabilities under any of the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionDocuments.
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a) hereofBorrower covenants and agrees, each Loan Party agrees toat Xxxxxxxx's sole cost and expense, jointly and severally, defend, to indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts reasonably acceptable to Lender) and hold each Indemnified Party harmless the Indemnitees from and against any and all Environmental Liabilities and Costs and all other liens, damages, losses, liabilities, obligations, settlement payments, penalties, assessments, citations, directives, claims, litigation, demands, penaltiesdefenses, finesjudgments, liability (including strict liability)suits, lossesproceedings, damagescosts, costs and disbursements or expenses of any kind or of any nature whatsoever (including, without limitation, reasonable attorneys', consultants' and documented out-of-pocket experts' fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties disbursements incurred in each relevant jurisdictioninvestigating, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictiondefending, consultant fees and laboratory fees)settling or prosecuting any claim, arising out of (ilitigation or proceeding) any Releases or threatened Releases (x) which may at any property presently time be imposed upon, incurred by or formerly owned asserted or operated by any Loan awarded against such Indemnified Party or any Subsidiary the Property and arising directly or indirectly from or out of: (A) the Release or Threat of any Loan Party, or any predecessor in interest, or (y) Release of any Hazardous Materials generated and disposed of by any Loan Party on, in, under or affecting all or any Subsidiary portion of the Property, regardless of whether or not caused by or within the control of Borrower; (B) the violation of any Loan PartyEnvironmental Laws relating to or affecting the Property or the Borrower, whether or any predecessor in interestnot caused by or within the control of Borrower; (iiC) the failure of Borrower to comply fully with the terms and conditions of this Paragraph 7; (D) the violation of any violations of Environmental Laws by in connection with other real property of Borrower which gives or relating may give rise to any Loan Partyrights whatsoever in any party with respect to the Property by virtue of any Environmental Laws; (iiiE) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made representation or warranty contained in this Paragraph 7; or (F) the enforcement of this Paragraph 7, including, without limitation (i) the costs of assessment, containment and/or removal of any and all Hazardous Materials from all or any portion of the Property, (ii) the costs of any actions taken in response to a Release or Threat of Release of any Hazardous Materials on, in, under or affecting all or any portion of the Property to prevent or minimize such Release or Threat of Release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and (iii) costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property. Xxxxxx's rights under this Paragraph shall be in addition to all other rights of Lender under this Mortgage, and the other Loan Documents and payments by Borrower under this Paragraph shall not reduce Borrower's obligations and liabilities under any of the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”)Documents. Notwithstanding the foregoing, the Loan Parties this indemnity shall not have any obligation apply to any Indemnitee under this subsection Release of Hazardous Materials first occurring after (bi) regarding the taking of possession of the Property by Xxxxxx or any potential environmental matter covered hereunder which is caused agent or receiver of Lender, or (ii) the taking of title to the Property by the gross negligence Xxxxxx or willful misconduct any third party following foreclosure, deed in lieu of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdictionforeclosure or similar proceeding.
Appears in 1 contract
Samples: Commercial Real Estate Term Note (Amphastar Pharmaceuticals, Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at #97100791v3 any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, interest or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan PartyLaws; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (v) any Environmental Liabilities and Costs relating to any investigation, removal, cleanup and/or remediation of any Hazardous Materials present or arising out of the operations of any facility of any Loan Party, (vi) any Environmental Liabilities and Costs incurred in connection with any Environmental Lien and (vvii) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Financing Agreement (North Atlantic Trading Co Inc)
Environmental Indemnity. Without limiting Section 12.15(a(i) hereof, the Company shall and shall cause each Loan other Note Party agrees to, jointly and severally, defend, to forthwith on demand fully indemnify, defend and hold save the Creditor and each of its directors, officers, employees and agents, and any of them (in this clause (d) any one or more or all of such Persons is referred to as the “Environmental Indemnified Party”), harmless the Indemnitees from and against any and all Environmental Liabilities liabilities, losses, claims, damages and Costs expenses (including all reasonable fees of counsel on a solicitor and his own client basis and accountant fees and reasonable expenses, court costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees expenses) sustained, paid, incurred or suffered by the Environmental Indemnified Party arising in any manner whatsoever out of or as a result of any environmental claims, liabilities or obligations of any and every nature whatsoever relating to or affecting any Note Party or the Collateral, or the property of others where any Note Party would be reasonably likely to have any liability in respect thereof under Applicable Law (all or any item or part of the foregoing liabilities, losses, claims, damages and expenses of one outside counsel and one local counsel are referred to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees this clause (taken d) as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified MattersLoss”). Notwithstanding the generality of the foregoing, the Loan Note Parties shall not have be obliged to indemnify the Environmental Indemnified Party to the extent any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused Environmental Loss has been incurred by reason of the gross negligence or willful wilful misconduct of such IndemniteeEnvironmental Indemnified Party. The Company acknowledges on behalf of itself and each Note Party that the Creditor is entering into the provisions of this clause (d) on its own behalf and as agent and trustee for its directors, officers, employees and agents;
(ii) if any claim (in this clause (d) referred to as determined a “Environmental Claim”) shall be asserted by any Person against the Environmental Indemnified Party which may give rise to a final non-appealable judgment Environmental Loss, the Environmental Indemnified Party shall promptly notify the Company of all particulars of such Environmental Claim upon learning of same. The failure to give any such notice, however, shall not affect any Note Party’s liability to indemnify the Environmental Indemnified Party unless such failure adversely and materially affects its ability to defend, object to, oppose or contest that Environmental Claim;
(iii) (A) each Note Party shall at all times have the right, if no Default or Event of Default has occurred and is continuing, but shall not be required, at its sole expense, to resist, defend and compromise any Environmental Claim in the name of the Environmental Indemnified Party, by legal counsel reasonably acceptable to the Environmental Indemnified Party who will cooperate in such defence on a court reasonable basis; provided that the Environmental Indemnified Party shall have the right to participate in the defence or compromise of competent jurisdiction.any Environmental Claim by other legal counsel of its choosing if the Environmental Indemnified Party, acting reasonably, determines it should so participate; provided that subject to subclause (B) below, the fees and disbursements of such other counsel shall be paid by the Company. The Environmental Indemnified Party shall not effect any settlement or compromise of any Environmental Claim without the prior written consent of the Company. Notwithstanding anything herein to the contrary, the Company on its own behalf must defend or must cause the applicable Note Party to defend such claim, diligently and reasonably throughout the period while such Claim exists. If any Note Party exercises its rights under this clause (d), the Company shall cause such Note Party not to compromise or otherwise settle a Environmental Claim without the consent of the Environmental Indemnified Party suffering such Claim, which consent shall not be unreasonably withheld or delayed. The inability of the Note Parties to pay such Claim in full shall constitute a sufficient reason to withhold such consent; and
Appears in 1 contract
Samples: Securities Restructuring Agreement (Sundial Growers Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any KL2 3287103.6 Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.15 may be unenforceable because it is violative of any law or public policy, each Loan Party shall, jointly and severally, contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters and Environmental Indemnified Matters incurred by the Indemnitees. No Loan Party shall assert, and each Loan Party hereby waives, any claim against the Indemnitees, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each Loan Party hereby waives, releases and agrees not to xxx upon any such claim or seek any such damages, whether or not accrued and whether or not known or suspected to exist in its favor. The indemnities set forth in this Section 12.15 shall survive the repayment of the Obligations, termination of the Loan Documents and discharge of any Liens granted under the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Boxlight Corp)
Environmental Indemnity. Without limiting Section 12.15(a) hereofTo the fullest extent permitted by law, each Loan Party Trustor agrees to, jointly and severally, to defend, indemnify, protect, release and hold harmless Beneficiary (whether as Beneficiary, a mortgagee in possession, as a successor in interest to Trustor by virtue of foreclosure of this Instrument, exercise of the Indemnitees private power of sale or otherwise, as owner or operator of the Property or in any other capacity), its affiliates, parents, subsidiaries, parties to whom Beneficiary sells loan participations (if applicable), the successors and assigns of each of the foregoing, and its and their directors, officers, shareholders, members, managers, employees, attorneys, representatives, and agents (collectively, the “Indemnified Parties” or singularly an “Indemnified Party”) for, from and against any and all Environmental Liabilities and Costs and all other claims, demandssuits, liabilities, actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, liabilities (including strict liabilities), fines, penalties, finescharges, liability fees, attorneys’ fees and costs, engineers’ fees, environmental consultants’ fees and investigation costs, costs of Remediation (whether or not performed voluntarily), and any other expenses (including strict liabilityexpenses incurred in enforcing this indemnity), lossesjudgments, awards, amounts paid in settlement, punitive damages, costs and expenses foreseeable and unforeseeable consequential damages (collectively, “Losses”) incurred by or threatened against Beneficiary or any other Indemnified Party arising directly or indirectly out of, or in any way related to:
i. Any past, present or threatened violations of any Environmental Laws in connection with all or any portion of the Property or operations thereon, including but not limited to any failure by Trustor or other users of the Property to comply with any Enforcement Action or any Environmental Law;
ii. Any actions necessary or appropriate to comply with any Environmental Law in any way connected with the Property;
iii. The presence of any Contaminant in, on or under all or any portion of the Property including, reasonable but not limited to, the use, treatment, storage, disposal, transportation, transfer, generation, processing, production, refining, control, management or handling of Contaminants in any way connected with the Property, but excluding the presence of de minimis amounts of Contaminants being used and documented out-of-pocket fees handled in compliance with all Environmental Laws;
iv. Any Remediation in any way connected with all or any portion of the Property;
v. Any breach of Trustor’s covenants or any breach or misrepresentation of Trustor’s representations and expenses of one outside counsel and one local counsel to the Agents and their Related Parties warranties in each relevant jurisdiction, one outside counsel and one local counsel to this Instrument or the other Indemnitees Loan Documents relating to compliance by either Trustor or the Property with all Environmental Laws and any Enforcement Actions;
vi. Any loss of priority of Beneficiary’s title to (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), or lien on) all or any portion of the Property directly or indirectly arising out of (i) or in any Releases or threatened Releases (x) at way relating to any property presently or formerly owned or operated by any Loan Party of the foregoing or any Subsidiary imposition of any Loan Partylien or other encumbrance on title to the Property pursuant to any Environmental Law or indirectly arising out of or in any way relating to any of the foregoing;
vii. Any personal injury, wrongful death, or property damage arising under any predecessor statutory or common law tort law theory, including but not limited to damages assessed for the maintenance of a private or public nuisance on or for conducting an abnormally dangerous activity on all or any portion of the Property. Trustor understands, acknowledges and agrees that its liabilities to Beneficiary pursuant to this indemnity shall be binding upon Trustor regardless of whether conditions described in this Section 24 resulted from acts or omissions of Trustor, its predecessors in interest, or any other person or from circumstances (ywhether or not on the Property) which occurred or existed prior to the date hereof or at any time during the period of Trustor’s ownership and control of the Property. Except as set forth below, Trustor’s liability hereunder shall survive and continue beyond foreclosure of this Instrument, the acceptance of any Hazardous Materials generated deed in lieu of foreclosure, the payoff or discharge of the Note, and disposed the release of by any this Instrument and the other Loan Party Documents. Trustor’s liability under this indemnity is not limited to or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all amount of the foregoing, collectively, “Environmental Indemnified Matters”)Loan. Notwithstanding the foregoing, the Loan Parties (1) Trustor shall not have be required to indemnify any obligation Indemnified Party (A) with respect to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the Losses arising out of such Indemnified Party’s gross negligence or willful misconduct misconduct, or (B) with respect to events occurring subsequent to the date, if any, that Beneficiary takes actual possession of such Indemniteethe Property pursuant to its remedial rights under the Loan Documents, and (2) upon full satisfaction of all of the conditions precedent set forth below, the indemnity obligations of Indemnitors pursuant to this Section 24 shall terminate. Such conditions precedent are as determined by a final non-appealable judgment of a court of competent jurisdiction.follows:
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees toagrees, jointly and severally, to defend, indemnify, and hold harmless the Indemnitees for, from and against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses (whether incurred in a third-party action or in an action brought by Agent or Lenders, as applicable, against either or both of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to Borrowers or any of the other Indemnitees (taken as a whole)in each relevant jurisdictionLoan Parties to enforce their rights under this Section), consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan PartyParty or any Subsidiary of any Loan Party or any Collateral; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Samples: Credit Agreement (Cornerworld Corp)
Environmental Indemnity. Without limiting Section 12.15(a(i) hereof, the Borrower shall and shall cause each other Loan Party agrees to, jointly and severally, defend, to forthwith on demand fully indemnify, defend and hold save each Secured Party and each of their respective directors, officers, employees and agents, and any of them (in this Section 9.1(l) any one or more or all of such Persons is referred to as the “Indemnified Party”), harmless the Indemnitees from and against any and all Environmental Liabilities liabilities, losses, claims, damages and Costs expenses (including all reasonable fees of counsel on a solicitor and his own client basis and accountant fees and reasonable expenses, court costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (including, reasonable and documented out-of-pocket fees and expenses expenses) sustained, paid, incurred or suffered by the Indemnified Party arising in any manner whatsoever out of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken or as a whole)in each relevant jurisdictionresult of any environmental claims, consultant fees liabilities or obligations of any and laboratory fees), arising out of (i) any Releases every nature whatsoever relating to or threatened Releases (x) at any property presently or formerly owned or operated by affecting any Loan Party or any Subsidiary of any Loan Partythe Collateral, or any predecessor in interest, or (y) the property of any Hazardous Materials generated and disposed of by others where any Loan Party would be reasonably likely to have any liability in respect thereof under Applicable Law (all or any Subsidiary of any Loan Party, item or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iii) any Environmental Action relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all part of the foregoingforegoing liabilities, collectivelylosses, claims, damages and expenses are referred to in this Section 9.1(l) as “Environmental Indemnified MattersLoss”). Notwithstanding the generality of the foregoing, the Loan Parties shall not have be obliged to indemnify the Indemnified Party to the extent any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused Loss has been incurred by reason of the gross negligence or willful wilful misconduct of such IndemniteeIndemnified Party. The Borrower acknowledges on behalf of itself and each Loan Party that each Lender is entering into the provisions of this Section 9.1(l) on its own behalf and as agent and trustee for its directors, officers, employees and agents;
(ii) if any claim (in this Section 9.1(l) referred to as determined a “Claim”) shall be asserted by any Person against the Indemnified Party which may give rise to a final non-appealable judgment Loss, the Indemnified Party shall promptly notify the Borrower of all particulars of such Claim upon learning of same. The failure to give any such notice, however, shall not affect any Loan Party’s liability to indemnify the Indemnified Party unless such failure adversely and materially affects its ability to defend, object to, oppose or contest that Claim;
(iii) (A) each Loan Party shall at all times have the right, if no Default or Event of Default has occurred and is continuing, but shall not be required, at its sole expense, to resist, defend and compromise any Claim in the name of the Indemnified Party, by legal counsel reasonably acceptable to the Indemnified Party who will cooperate in such defence on a court reasonable basis; provided that the Indemnified Party shall have the right to participate in the defence or compromise of competent jurisdiction.any Claim by other legal counsel of its choosing if the Indemnified Party, acting reasonably, determines it should so participate; provided that subject to Section 9.1(l)(iii)(B) the fees and disbursements of such other counsel shall be paid by the Borrower. The Indemnified Party shall not effect any settlement or compromise of any Claim without the prior written consent of the Borrower. Notwithstanding anything herein to the contrary, the Borrower on its own behalf must defend or must cause the applicable Loan Party to defend such claim, diligently and reasonably throughout the period while such Claim exists. If any Loan Party exercises its rights under this Section 9.1(l), the Borrower shall cause such Loan Party not to compromise or otherwise settle a Claim without the consent of the Indemnified Party suffering such Claim, which consent shall not be unreasonably withheld or delayed. The inability of the Loan Parties to pay such Claim in full shall constitute a sufficient reason to withhold such consent; and
Appears in 1 contract
Samples: Amended and Restated Credit Agreement (Sundial Growers Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each the Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant and other professional advisors' fees and laboratory fees, with value added taxes where applicable), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by the Parent, any Loan Party or any Subsidiary of any Loan Partythereof, or any predecessor in interest, or (y) of any Hazardous Materials generated and or disposed of by the Parent, any Loan Party or any Subsidiary of any Loan Partythereof, or any predecessor in interest; (ii) any violations of applicable Environmental Laws by or relating to any Loan Partynon-compliance with Environmental Permits; (iii) any Environmental Action relating to the Parent, any Loan Party or any Subsidiary of any Loan Partythereof, or any predecessor in interest; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by the Parent, any Loan Party or any Subsidiary of any Loan Partythereof, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Parent and the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Parent and the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interestinterest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or, to the extent such Release or threatened Release relates to Hazardous Materials generated or disposed of by any contract manufacturer of a Loan Party or Subsidiary of Loan Party as a result of the contract manufacturing performed on behalf of such Loan Party or its Subsidiaries, any contract manufacturer for a Loan Party or Subsidiary of a Loan Party, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interestinterest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or, to the extent such Release relates to Hazardous Materials generated or disposed of by any contract manufacturer of a Loan Party or Subsidiary of Loan Party as a result of the contract manufacturing performed on behalf of such Loan Party or its Subsidiaries; (ii) any violations of Environmental Laws by or relating to any Loan PartyLaws; (iii) any Environmental Action relating to any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interestinterest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or any contract manufacturer for a Loan Party or Subsidiary of Loan Party to the extent arising out of contract manufacturing performed on behalf of such Loan Party or its Subsidiary; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party, any Subsidiary of any Loan Party, any predecessor in interest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or, to the extent arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any contract manufacturer by or on behalf of any Loan Party or any Subsidiary of any Loan Party, any contract manufacturer for a Loan Party or any predecessor in interestSubsidiary of Loan Party; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r6.01(q) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Environmental Indemnity. Without limiting Section 12.15(a) hereofThe Corporation hereby indemnifies and holds harmless the Trustee, each Loan Party agrees toits directors, jointly and severallyofficers, defend, indemnifyemployees, and hold harmless agents, and all of their respective representatives, heirs, successors and assigns (collectively the Indemnitees “Indemnified Parties”) against any and all Environmental Liabilities and Costs and all other claimsloss, demandsexpenses, penaltiesclaim, finesproceedings, judgment, liability or asserted liability (including strict liability), losses, damages, liability and including costs and expenses of abatement and remediation of spills or releases of contaminants and including liabilities of the Indemnified Parties to third parties (includingincluding governmental agencies) in respect of bodily injuries, reasonable property damage, damage to or impairment of the environment or any other injury or damage and documented out-including liabilities of the Indemnified Parties to third parties for the third parties’ foreseeable and unforeseeable consequential damages) incurred as a result of-pocket fees :
(a) the administration of the trust created hereby;
(b) the exercise by the Trustee of any rights hereunder or under this Indenture and any documents referenced herein which result from or relate, directly or indirectly, to:
(i) the presence or release of any contaminants, by any means or for any reason, on the mortgaged property under this Indenture and any documents referenced herein whether or not release or presence of the contaminants was under the control, care or management of the Corporation or of a previous owner, or of a tenant;
(ii) any contaminant present on or released from any contiguous property to the mortgaged property under this Indenture and any documents referenced herein; or
(iii) the breach or alleged breach of any environmental laws by the Corporation. For purposes of this Section, “liability” shall include: (i) liability of an Indemnified Party for costs and expenses of one outside counsel abatement and one local counsel to the Agents remediation of spills and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdiction, consultant fees and laboratory fees), arising out releases of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestcontaminants; (ii) any violations liability of Environmental Laws an Indemnified Party to a third party to reimburse the third party for bodily injuries, property damages and other injuries or damages which the third party suffers, including (to the extent, if any, that the Indemnified Party is liable therefor) foreseeable and unforeseeable consequential damages suffered by or relating to any Loan Partythe third party; and (iii) any Environmental Action relating to any Loan liability of the Indemnified Party or any Subsidiary of any Loan Party, or any predecessor in interestfor damage suffered by the third party; (iv) any personal injury (including wrongful death) liability of an Indemnified Party for damage to or property damage (real or personal) arising out impairment of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interestthe environment; and (v) any breach liability of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach an Indemnified Party for court costs, expenses of any covenant made by the Loan Parties in Section 7.01(j) (all alternative dispute resolution proceedings, and fees and disbursements of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by expert consultants and legal counsel on a final non-appealable judgment of a court of competent jurisdictionsolicitor and client basis.
Appears in 1 contract
Samples: Convertible Debenture Indenture (Mogo Finance Technology Inc.)
Environmental Indemnity. Without limiting Section 12.15(a) hereof, each Loan Party agrees to, jointly and severally, defend, indemnify, and hold harmless the Indemnitees against any and all Environmental Liabilities and Costs and all other claims, demands, penalties, fines, liability (including strict liability), losses, damages, costs and expenses (includingincluding without limitation, reasonable and documented out-of-pocket legal fees and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdiction, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionexpenses, consultant fees and laboratory fees), arising out of (i) any Releases or threatened Releases (x) at any property presently or formerly owned or operated by any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interestinterest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or, to the extent such Release or threatened Release relates to Hazardous Materials generated or disposed of by any contract manufacturer of a Loan Party or Subsidiary of Loan Party as a result of the contract manufacturing performed on behalf of such Loan Party or its Subsidiaries, any contract manufacturer for a Loan Party or Subsidiary of a Loan Party, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interestinterest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or, to the extent such Release relates to Hazardous Materials generated or disposed of by any contract manufacturer of a Loan Party or Subsidiary of Loan Party as a result of the contract manufacturing performed on behalf of such Loan Party or its Subsidiaries; (ii) any violations of Environmental Laws by or relating to any Loan PartyLaws; (iii) any Environmental Action relating to any Loan Party or Party, any Subsidiary of any Loan Party, or any predecessor in interestinterest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or any contract manufacturer for a Loan Party or Subsidiary of Loan Party to the extent arising out of contract manufacturing performed on behalf of such Loan Party or its Subsidiary; (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party, any Subsidiary of any Loan Party, any predecessor in interest with respect to the business of, assets owned or operated by, or operations of, any Loan Party or its Subsidiaries, or, to the extent arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any contract manufacturer by or on behalf of any Loan Party or any Subsidiary of any Loan Party, any contract manufacturer for a Loan Party or any predecessor in interestSubsidiary of Loan Party; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r6.01(p) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding the foregoing, the Loan Parties shall not have any obligation to any Indemnitee under this subsection (b) regarding any potential environmental matter covered hereunder which is caused by the gross negligence or willful misconduct of such Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction.
Appears in 1 contract
Environmental Indemnity. (i) Without in any way limiting the generality of the other provisions contained in this Section 12.15(a) hereof9.2, each Loan Party agrees tothe Borrowers agree on a joint and several basis to defend, jointly and severally, defendprotect, indemnify, save and hold harmless each Indemnified Person, whether as beneficiary of any of the Indemnitees Security Documents, as a mortgagee in possession, or as successor-in-interest to either Borrower by foreclosure deed or deed in lieu of foreclosure, or otherwise, from and against any and all Environmental Liabilities liabilities, obligations, losses, damages (including foreseeable and Costs unforeseeable consequential damages and all other punitive claims, demands), penalties, finesfees, liability (including strict liability)claims, lossesactions, damagesjudgments, costs and expenses suits, costs, disbursements (including, reasonable without limitation, Attorney Costs and documented out-of-pocket consultants’ fees and disbursements) and expenses of one outside counsel and one local counsel to the Agents and their Related Parties in each relevant jurisdictionany kind or nature whatsoever that may at any time be incurred by, one outside counsel and one local counsel to the other Indemnitees (taken as a whole)in each relevant jurisdictionimposed on, consultant fees and laboratory fees)asserted or awarded against any such Indemnified Person directly or indirectly based on, or arising out of or resulting from, (iA) any Releases the actual or threatened Releases (x) at any property presently alleged presence of Hazardous Materials on, in, under or formerly owned or operated by any Loan Party affecting all or any Subsidiary portion of either of the Drilling Units whether or not the same originates or emanates from the Drilling Units or from properties at which any Loan PartyHazardous Materials generated, stored or any predecessor in interesthandled by the Borrowers were Released or disposed of, or (y) of any Hazardous Materials generated and disposed of by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; (ii) any violations of Environmental Laws by or relating to any Loan Party; (iiiB) any Environmental Action Claim relating to any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; the Projects (iv) any personal injury (including wrongful death) or property damage (real or personal) arising out of exposure to Hazardous Materials used, handled, generated, transported or disposed by any Loan Party or any Subsidiary of any Loan Party, or any predecessor in interest; and (v) any breach of any warranty or representation regarding environmental matters made by the Loan Parties in Section 6.01(r) or the breach of any covenant made by the Loan Parties in Section 7.01(j) (all of the foregoing, collectively, “Environmental Indemnified Matters”). Notwithstanding , whether any of the foregoingIndemnified Matters arise before or after foreclosure of any of the Security Interests or other taking of title to all or any portion of the Collateral by any Secured Party, including, without limitation, (x) the Loan Parties shall not have costs of removal of any obligation and all Hazardous Materials from all or any portion of either Drilling Unit or elsewhere, (y) additional costs required to take reasonable precautions to protect against the Release of Hazardous Materials on, in, under or affecting either Drilling Unit into the air, any Indemnitee under this subsection body of water, any other public domain or any surrounding areas, and (bz) regarding costs incurred to comply, in connection with all or any potential environmental matter covered hereunder which is caused by portion of either Drilling Unit, with all applicable Environmental Laws with respect to Hazardous Materials, except to the extent that any such Indemnified Matter arises from the gross negligence or willful misconduct of such IndemniteeIndemnified Person.
(ii) In no event shall any site visit, observation, or testing by any Indemnified Person (or any representative of any such Person) be deemed to be a representation or warranty that Hazardous Materials are or are not present with respect to the Drilling Units or that there has been or shall be compliance with any Environmental Law. None of the Borrowers or any other Person is entitled to rely on any site visit, observation, or testing by any Indemnified Person. No Indemnified Person owes any duty of care to protect the Borrowers or any other Person against, or to inform the Borrowers or any other Person of, any Hazardous Materials or any other adverse condition affecting the Projects. No Indemnified Person shall be obligated to disclose to the Borrowers or any other Person any report or findings made as determined a result of, or in connection with, any site visit, observation, or testing by a final non-appealable judgment of a court of competent jurisdictionany Indemnified Person.
Appears in 1 contract
