Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders). (b) The Borrower Parties, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)). (c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties. (d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17. (e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. (f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 6 contracts
Samples: Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent, the Arrangers, Syndication Agent and the Lead Arrangers Syndication Agent in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the syndication of the Term Facility, preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent, the Arrangers, Syndication Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Syndication Agent, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent, the Arrangers, Syndication Agent and the Lead Arrangers (and Syndication Agent and, in the case of enforcement of this Agreement, the Lenders).
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each LenderSyndication Agent, each Issuing BankDocumentation Agent, each Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Term Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent, Arrangers, Syndication Agent or any Lead Arranger Syndication Agent or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger, syndication agent or documentation agent or any other similar role hereunder under the Term Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this paragraph (2) or (B) claims arising out of any act or omission on the part of Holdings, the Borrower or their Restricted Subsidiaries.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.14.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Term Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 6 contracts
Samples: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, Borrowers agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by the Administrative Agent and Agent, the Lead Arrangers and the Joint Bookrunners named on the cover of this Agreement and their Affiliates in connection with the preparation arrangement and syndication of this Agreement the credit facility established hereby and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, negotiation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval delivery of the Borrower Loan Documents (and all related commitment or provided for in this Agreementfee letters) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof thereof, or incurred by the Administrative Agent or any Lender in connection with the administration, enforcement or protection of their rights in connection with the Loan Documents (whether including all such out-of pocket expenses incurred during any workout or not restructuring) or in connection with the Transactions hereby contemplated shall be consummated)Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced fees, charges reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the each Lead Arrangers (Arranger and Joint Bookrunner or, in the case of enforcement or protection of this Agreementtheir rights, the LendersLenders (which, in the case of preparation, negotiation, execution, delivery and administration of the Loan Documents, but not the enforcement or protection of rights thereunder, shall be limited to a single counsel for the Administrative Agent, the Lead Arrangers and the Joint Bookrunners).
(b) The Borrower Parties, jointly and severally, Borrowers agree to indemnify the Administrative Agent, each the Lead ArrangerArrangers, the Syndication Agent and the Joint Bookrunners named on the cover page of this Agreement, the Issuing Banks, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective the directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each agents of their respective successors and permitted assigns the foregoing (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated reasonable expenses, documented including reasonable counsel fees and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)expenses, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the arrangement and syndication of the credit facility established hereby and the preparation, negotiation, execution or and delivery of this Agreement the Loan Documents (and all related commitment or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder fee letters) or the consummation of the Transactions and the other transactions contemplated herebythereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of the Loans or issuance of Letters of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether initiated by any third party or by any Borrower and whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Lawsthereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith negligence or willful wilful misconduct of such Indemnitee or any of its Related PartiesIndemnitee.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans, the use by unintended recipients expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the other Loan Documents any investigation made by or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Issuing Banks or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation therefor.
(d) Notwithstanding any other provision, this Section 10.05 shall not apply with respect to any reimbursementmatters, indemnification liabilities or other amount requestedobligations relating to Taxes.
Appears in 4 contracts
Samples: Credit Facility Agreement (Xylem Inc.), Credit Facility Agreement (Exelis Inc.), Credit Facility Agreement (Xylem Inc.)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the syndication of the Term Facility, preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Arrangers, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and and, in the case of enforcement of this Agreement, the Lenders).
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Term Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent or any Lead Arranger or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger, syndication agent or documentation agent or any other similar role hereunder under the Term Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this paragraph (2) or (B) claims arising out of any act or omission on the part of Holdings, the Borrower or their Affiliates.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.14.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Term Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 4 contracts
Samples: First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), First Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Second Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent Agent, the Arrangers, Syndication Agents, Senior Managing Agents and the Lead Arrangers Documentation Agents in connection with the syndication of Revolving Facility, preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, each Lender, Issuing Bank and the LendersSwingline Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Arrangers, Syndication Agents, Senior Managing Agents and Documentation Agents, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent Agent, the Arrangers, Syndication Agents, Senior Managing Agents and the Lead Arrangers (and Documentation Agents and, in the case of enforcement of this Agreement, each Lender, Issuing Bank and the Lenders)Swingline Lender.
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Syndication Agent, each Senior Managing Agent, each Documentation Agent, each Lender, each Issuing Bank, the Swingline Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it: (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent Agent, Arrangers, Syndication Agents, Senior Managing Agents or any Lead Arranger Documentation Agents or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger, syndication agents, senior managing agent or documentation agents or any other similar role hereunder under the Revolving Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of Holdings, the Borrower or their Restricted Subsidiaries.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Letter of Credit, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 4 contracts
Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or and/or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx Shearman & Xxxxxxxx Sterling LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)Arrangers.
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Term Loans or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by HoldingsParent, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-non appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead an Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-non appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.15.
(e) To the fullest extent permitted by applicable law, Holdings Parent and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Term Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 3 contracts
Samples: Credit Agreement (Smart & Final Stores, Inc.), Credit Agreement (Smart & Final Stores, Inc.), First Lien Term Loan Credit Agreement (Smart & Final Stores, Inc.)
Expenses; Indemnity. (a) The Borrower Partiesand Holdings agree, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses (including but not limited to expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) incurred by the Administrative Agent Agent, the Collateral Agent, the Swingline Lender and the Lead Arrangers Issuing Bank in connection with the preparation syndication of the credit facilities provided for herein and the preparation, execution and delivery, and administration of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreementincluding any Inventory Appraisal, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications modifications, enforcement costs, work-out costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the work-out enforcement or protection of its rights in connection with this Agreement (including pursuant to Section 9.02 of this Agreement) and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced fees, charges and disbursements of a single Lxxxxx & Wxxxxxx, counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementCollateral Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in connection with any such enforcement or protection, or work-out, the case fees, charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders)Collateral Agent or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arrangerthe Collateral Agent, each Lender, each the Issuing BankBank and the Swingline Lender, each Affiliate of their respective Affiliates any of the foregoing Persons and each of their respective directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges charges, expenses and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated herebyTransactions, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iii) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials atMaterials, underon, on under or from any property for which the Borrower Property owned, leased or operated by any Company, or any of its Restricted Subsidiaries isEnvironmental Claim related in any way to any Company; provided, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or any of its Related PartiesIndemnitee.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Collateral Agent, the Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section 11.03, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposure and unused Commitments at the time.
Appears in 3 contracts
Samples: Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers Arranger in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the syndication of the Term Facility, preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Arranger, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and Arranger and, in the case of enforcement of this Agreement, the Lenders).
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead the Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Term Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent or any Lead Arranger or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger, syndication agent or documentation agent or any other similar role hereunder under the Term Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this paragraph (2) or (B) claims arising out of any act or omission on the part of Holdings, the Borrower or their Affiliates.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.14.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Term Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, primary counsel for the Administrative Agent, the Arrangers and the Lenders and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the fees, charges and disbursements of one primary counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreementplus, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)if necessary, one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lendersper jurisdiction).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arrangerthe Agents, each Lenderthe Arrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall notprovided, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith faith, willful misconduct of, or material breach of the Loan Documents by, such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one primary counsel for the Administrative Agent and the Arrangers, one additional primary counsel for the Lenders, plus, if necessary, one local counsel per jurisdiction), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any property currently or formerly owned or operated by Holdings, the Borrower or any of the Subsidiaries; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties. None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to the Fund, Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 10.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 10.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17, this Section 10.05 shall not apply to Taxes.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 3 contracts
Samples: Amendment to Credit Agreement (Anywhere Real Estate Group LLC), Credit Agreement (Realogy Holdings Corp.), Credit Agreement (Realogy Holdings Corp.)
Expenses; Indemnity. (a) The Borrower Parties, jointly Borrowers shall reimburse (a) all reasonable and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by of the Administrative Agent, the Collateral Agent and each Arranger (including due diligence expenses, syndication expenses, travel expenses and reasonable fees, charges and disbursements of one firm of counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and one local counsel in any relevant jurisdiction (including, without limitation, each Specified Jurisdiction)), notarial fees relating to any Spanish Public Document and registration fees, if any, notarial fees relating to any Polish Law Security Documents and registration fees, and, solely in the case of an actual or potential conflict of interest, of one additional counsel (and one additional local counsel in any relevant jurisdiction)) incurred in connection with the preparation of this Agreement and the other Loan DocumentsDocuments or the administration, amendment, modification or waiver thereof and (b) if an Event of Default occurs, all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and each Lender, including the fees and disbursements of one firm of counsel (and one local counsel in any relevant jurisdiction) and, solely in the case of enforcement an actual or potential conflict of this Agreementinterest, the Lendersof one additional counsel (and, if reasonably necessary, one additional local counsel in any relevant jurisdiction) in connection with the preparationsuch Event of Default and collection, execution bankruptcy, insolvency, administration, Irish examinership and delivery, amendment, modification, waiver or other enforcement of this Agreement proceedings resulting therefrom (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination notarial fees relating to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreementany Spanish Public Document, court clerk fees (procurador) or in connection with the administration of this Agreement (even if their intervention is not mandatory), court costs and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented sworn translation costs and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of together with any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lendersapplicable VAT).
(b) The Borrower Parties, jointly Borrowers shall indemnify and severally, agree to indemnify the Administrative Agent, each Lead Arranger, hold harmless each Lender, each Issuing Bankthe Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), each of their respective Affiliates Arranger and each of their respective affiliates and their respective officers, directors, officers, employees, agents, advisors, controlling personsand agents (each, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “IndemniteeIndemnified Person”) against, from and to hold each Indemnitee harmless from, against any and all losses, claims, damages, damages and liabilities (including environmental liabilities) and reasonable, documented and invoiced related expenses (including the fees, charges and disbursements of one firm of any counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (any Indemnified Person) to which any such Indemnified Person may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees become subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of (i) connection with the execution or delivery of this Agreement or Agreement, any other Loan DocumentDocuments, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its related parties only, the administration of this Agreement and the other transactions contemplated herebyLoan Documents (including in respect of any matters addressed in Section 2.17), (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of Term Loans thereunder or any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) related transaction or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether or not any Indemnitee Indemnified Person is a party thereto and regardless of whether such matter is initiated brought by a third party or by Holdings, the Borrower Parent or any of their Subsidiaries its affiliates (any of the foregoing, a “Proceeding”), and to reimburse each Indemnified Person upon demand for any reasonable and documented legal or Affiliatesother expenses incurred in connection with investigating or defending any of the foregoing; provided that such (i) the foregoing indemnity shall will not, as to any IndemniteeIndemnified Person, be available apply to the extent that such losses, claims, damages, liabilities or related expenses (A) to the extent they are determined found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted arise from (1) the gross negligencebad faith, bad faith or willful misconduct or gross negligence of such Indemnitee Indemnified Person or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or Persons, (B) result to the extent resulting from any proceeding between or among Indemnitees Proceeding that does not involve an act or omission of Parent or any of its Affiliates and that is brought by the Borrower or the other Subsidiaries (an Indemnified Person solely against another Indemnified Person, other than claims against the Administrative Agent Agent, any Arranger or any Lead Arranger other agent in its capacity or in fulfilling its role as an agent or Arranger under the Administrative Agent Loan Documents or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(cC) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that resulting from a material breach by such losses, claims, damages, liabilities Indemnified Person or related expenses are determined any Related Person thereof of its obligations under the Loan Documents as found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereofjurisdiction. No Indemnitee Indemnified Person shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunicationselectronic, electronic telecommunications or other information transmission systems in connection with this Agreement (other than for direct or actual damages resulting from the bad faith, gross negligence or willful misconduct of such Indemnified Person or any Related Person thereof as found by a final, non-appealable judgment of a court of competent jurisdiction), it being understood that the use of electronic telecommunications or other Loan Documents information transmission systems will not itself constitute bad faith, gross negligence or the transactions contemplated hereby or thereby.
(f) willful misconduct. The agreements in provisions of this Section 9.05 shall survive remain operative and in full force and effect regardless of the resignation expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the occurrence of the Termination Date, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on within 15 days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested. A “Related Person” of an Indemnified Person shall mean (a) any controlling person, controlled affiliate or subsidiary of such Indemnified Person, (b) the respective directors, officers or employees of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons and (c) the respective agents and advisors of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Adient PLC), Term Loan Credit Agreement (Adient PLC), Term Loan Credit Agreement (Adient PLC)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, reasonable and documented and invoiced out-of-pocket expenses incurred by (i) the Administrative Agent, the Collateral Agent and the Lead Arrangers Lenders in connection with the preparation and consummation of this Agreement and the other Loan Documents, or by including the fees, charges and disbursements of Wachtell, Lipton, Xxxxx & Katz, Barbosa, Müssnich & Aragão Advogados and De Brauw Blackstone Westbroek N.V., (ii) the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or Agent in connection with the administration of this Agreement hereof and the other Loan Documents and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of one counsel in each relevant additional jurisdiction (and any such additional counsel, if necessary, as a single counsel result of actual or potential conflicts of interest) for the Administrative Agent and the Lead Arrangers Collateral Agent, and (and in iii) the case of enforcement of this AgreementAdministrative Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Collateral Agent and the Lenders in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section 9.05, and, in connection with any such enforcement or protection, the fees, charges and disbursements of one firm of local counsel in each appropriate relevant additional jurisdiction and(and any such additional counsel, in the case if necessary, as a result of any actual or perceived conflict potential conflicts of interest, one additional firm of counsel ) for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arrangerthe Collateral Agent, each Lender, each Issuing Bank, each of their respective Affiliates Lender and each Related Party of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each any of their respective successors and permitted assigns the foregoing persons (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities liabilities, penalties and reasonablerelated reasonable out-of-pocket expenses, documented and invoiced including reasonable fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, andin each relevant jurisdiction (and any such additional counsel, if necessary, one firm as a result of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictionsactual or potential conflicts of interest) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)Indemnitees, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions or any related transaction and the other transactions contemplated herebythereby (including the syndication of the Credit Facility), or, in the case of the Administrative Agent or Collateral Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or Loans, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by Holdingsthe Borrower, the Borrower any other Loan Party or any of their Subsidiaries respective Affiliates), or Affiliates(iv) any actual or alleged presence or Release of Hazardous Materials on any property currently or formerly owned or operated by the Borrower, any Parent Guarantor or any of their Subsidiaries, or any Environmental Claim related in any way to the Borrower, the Parent Guarantors or any of their Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities liabilities, penalties or related expenses (Ax) are determined by a final, non-appealable judgment of a court of competent jurisdiction by final judgment to have resulted primarily from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct this Agreement of such Indemnitee or any of such Indemnitee’s Affiliates or of any of its Related Partiesor their respective officers, directors, employees, agents, advisors or other representatives of the foregoing under this Agreement (as determined by a court of competent jurisdiction in a final and nonappealable decision) or (y) result from any proceeding (other than a proceeding against a party hereto acting pursuant to this Agreement or in its capacity as such or of any of its Affiliates or its or their respective officers, directors, employees, agents, advisors and other representatives and the successors of each of the foregoing) solely between or among Indemnitees not arising from any act or omission of a Loan Party or any of its Affiliates.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section 9.05, each Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the Collateral Agent (or any sub-agent of the foregoing) in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the outstanding Loans at the time.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and neither the Borrower nor any Indemnitee shall not assert, and each hereby waivewaives, any claim against any IndemniteeIndemnitee or the Borrower and each of their respective Affiliates, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, Agreement or any other Loan Document or any other agreement or instrument contemplated hereby, the transactions contemplated hereby Transactions or thereby, any Commitment, any Loan or the use of the proceeds thereof. ; provided, that nothing contained in this sentence shall limit the Borrower’s indemnification obligations above to the extent such special, indirect, consequential and punitive damages are included in any third party claim in connection with which any Indemnitee is entitled to indemnification hereunder
(e) No Indemnitee referred to above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or therebyTransactions.
(f) The agreements in provisions of this Section 9.05 shall survive remain operative and in full force and effect regardless of the resignation expiration of the term of this Agreement, the consummation of the Transactions, the repayment of any of the Loans, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the replacement of Collateral Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on payable, within 30 days of written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requesteda reasonably detailed summary of the amounts claimed.
Appears in 3 contracts
Samples: Amendment and Restatement Agreement (Pyxus International, Inc.), Term Loan Credit Agreement (Pyxus International, Inc.), Term Loan Credit Agreement (Pyxus International, Inc.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, Loan Parties agree to pay (i) all reasonable, reasonable documented and invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers Collateral Agent in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Stroock & Stroock & Xxxxx LLP, counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementCollateral Agent, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Agents or any Lender in each appropriate connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the reasonable fees, charges and disbursements of counsel for the Agents and the Lenders (including the reasonable fees, charges and disbursements of Stroock & Stroock & Xxxxx LLP, counsel for the Agents, and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction and, in the case event of any actual or perceived conflict of interest, one such additional firm of counsel for each of the Administrative Agent and Lenders retained with the Lead Arrangers (and in consent of the case Borrower to the extent of enforcement such conflict of this Agreement, the Lendersinterests).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, the Agents , each Lead ArrangerL/C Issuer, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, partners, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of (limited to not more than one firm of counsel for all Indemniteescounsel, taken as a whole, andplus, if necessary, one firm local counsel per material jurisdiction) (except the allocated costs of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of or otherwise relating to the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) , or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsAffiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith faith, or willful misconduct of such Indemnitee (for purposes this proviso only, each of the Administrative Agent, any L/C Issuer or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee), (2) any material breach of any Loan Document by such Indemnitee or any of its Related Parties (other than by Wilmington Trust, National Association, in its capacity as Administrative Agent, Collateral Agent and/or Security Trustee), or (3) any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrower or any of its Affiliates and is brought by an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any Agent in its capacity as such). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim or liability related in any way to Environmental Laws of the Borrower or any of the Subsidiaries or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any Real Property; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (1) the bad faith, gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
, (d2) Any indemnification any material breach of any Loan Document by such Indemnitee (other than by Wilmington Trust, National Association, in its capacity as Administrative Agent, Collateral Agent and/or Security Trustee), or payments required (3) any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrower or any of its Affiliates and is brought by an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any Agent in its capacity as such). None of the Indemnitees (or any of their respective Affiliates) shall be responsible or liable to the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other Person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Parties Document, or any investigation made by or on behalf of the Administrative Agent, any L/C Issuer or any Lender. All amounts due under this Section 9.05 shall be payable within fifteen (15) days of written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes, except Taxes that represent damages or losses resulting from a non-Tax claim.
(ed) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waivewaives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)
Expenses; Indemnity. The Borrowers will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonable, documented without limitation all out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including without limitation reasonable fees and disbursements of counsel for the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply with the terms administration and enforcement of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any rights and remedies of the foregoingAdministrative Agent and Lenders under the Credit Facility, whether including, without limitation, in connection with any workout, restructuring, bankruptcy or not other similar proceeding, enforcing any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party Obligations of, or collecting any payments due from, any Borrower or by Holdingsreason of an Event of Default; consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the Borrower nature, scope or value of any right or remedy of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in its capacity connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in connection with any claim (including, without limitation, any Environmental Claims or in fulfilling its role as civil penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger party thereto, and whether or not any such claim, investigation, litigation or other proceeding is brought or otherwise instituted by any Borrower or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholethird party) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of any claim related to Environmental Laws and with the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofLoans, this Agreement, any other Loan Document or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred herein or therein or the transactions contemplated hereby or thereby, including, without limitation, reasonable attorney’s and consultant’s fees, except to the extent that any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising foregoing directly result from the use by unintended recipients of any information gross negligence or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation willful misconduct of the Administrative Agent, the replacement party seeking indemnification therefore as determined in a final and non-appealable judgment by a court of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedcompetent jurisdiction.
Appears in 2 contracts
Samples: Credit Agreement (Belk Inc), Credit Agreement (Belk Inc)
Expenses; Indemnity. The Borrower will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonableincluding, documented without limitation, all out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including, without limitation, reasonable fees and disbursements of counsel for the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply the administration and enforcement of any rights and remedies of the Administrative Agent and Lenders under the Credit Facility, including, without limitation, in connection with the terms any workout, restructuring, bankruptcy or other similar proceeding, creating and perfecting Liens in favor of such Letter Administrative Agent on behalf of Credit) or (iii) any claim, litigation, investigation or proceeding relating Lenders pursuant to any of the foregoingSecurity Document, whether enforcing any Obligations of, or not collecting any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingspayments due from, the Borrower or any Guarantor by reason of their Subsidiaries an Event of Default (including in connection with the sale of, collection from, or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or other realization upon any of its Related Parties the Collateral or (2) a material breach the enforcement of the obligations Guaranty Agreement; consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the nature, scope or value of such Indemnitee hereunder any right or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against remedy of the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in its capacity connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, trustees, advisors, officers and directors, from and against any obligations, losses, penalties, fines, liabilities, settlements, damages, actions, judgments, suits, disbursements, costs and expenses, suffered by any such Person in connection with any claim (including, without limitation, any Environmental Claims), investigation, litigation or in fulfilling its role as other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholeparty thereto) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of any claim related to Environmental Laws and with the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofLoans, this Agreement, any other Loan Document Document, or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred to herein or therein or the transactions contemplated hereby or thereby, including, without limitation, reasonable attorney's and consultant's fees, except to the extent that any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising foregoing directly result from the use by unintended recipients of any information gross negligence or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation willful misconduct of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, party seeking indemnification or other amount requestedtherefor.
Appears in 2 contracts
Samples: Credit Agreement (Jack in the Box Inc /New/), Credit Agreement (Jack in the Box Inc /New/)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Xxxxx Xxxx & Xxxxxxxx, counsel for the Administrative Agent and the Co-Lead Arrangers (and in the case of enforcement of this AgreementArrangers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and (ii) all out of pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Co-Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall notprovided, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-non appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any Property; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties. None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to the Fund, Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 10.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 10.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17, this Section 10.05 shall not apply to Taxes.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Expenses; Indemnity. (a1) The Borrower PartiesIf the Transactions are consummated and the Closing Date occurs, jointly and severally, the Borrowers agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent, the Arrangers, Syndication Agent and the Lead Arrangers Syndication Agent in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the syndication of the Term Facility, preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower Borrowers or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent, the Arrangers, Syndication Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Syndication Agent, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, where the indemnified person affected by such conflict informs the Borrowers of such conflict, one additional firm of counsel for the Administrative Agent, the Arrangers, Syndication Agent and the Lead Arrangers (and Syndication Agent and, in the case of enforcement of this Agreement, the LendersLenders (in the aggregate). In relation to any Spanish Loan Party and any Loan Documents or Spanish Security Documents they incorporate or sign subject to the laws of Spain, the Borrowers and/or the corresponding Spanish Loan Party shall also pay the applicable pre-agreed notary public fees and registry fees whenever due. For the sake of clarity, notwithstanding the foregoing, as set out in Section 10.04(11), any taxes or costs (including, but not limited to, notarial or registry fees) arising from any transfer or assignment from the Lenders or Secured Parties shall be borne by the relevant Lender or Secured Party but not by the Loan Parties.
(b2) The Borrower Parties, jointly and severally, Borrowers agree to indemnify the Administrative Agent, each Lead Arranger, each LenderSyndication Agent, each Issuing BankDocumentation Agent, each Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Term Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to the Transactions or any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the any Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors or any other Person; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1x) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder or Related Parties under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent, Arrangers, Syndication Agent or any Lead Arranger Syndication Agent or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger, syndication agent or documentation agent or any other similar role hereunder under the Term Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this paragraph (2) or (B) claims arising out of any act or omission on the part of Holdings, any Borrower or any of their Restricted Subsidiaries.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, Borrowers agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses losses, claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Holdings, any Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Holdings, any Borrower or any Restricted Subsidiaries would reasonably be expected to be liable under Environmental Laws, regardless of whether such matter is initiated by Holdings, any Borrower or any of its their Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsAffiliates or creditors or any other Person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.14.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower no Indemnitee, nor any Loan Party shall not assert, and hereby waivewaives, any claim against the Loan Parties or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Term Loan or the use of the proceeds thereof; provided that nothing contained in this sentence shall limit the indemnity and reimbursement obligations set forth in clauses (1) through (3) of this Section 10.05. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Venator Materials PLC), Term Loan Credit Agreement (Venator Materials PLC)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and or invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers each Arranger in connection with the preparation of this Agreement and the other Loan DocumentsCredit Documents and in connection with the syndication and distribution of the credit facilities provided for therein, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Administrative Agent and the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single one primary outside counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Administrative Agent and the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify and hold harmless the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates (including, without limitation, controlling persons) and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all joint and several actions, suits, judgments and other proceedings, investigations, inquiry, losses, claims, damages, liabilities liabilities, obligations, penalties and reasonable and documented out-of-pocket expenses, costs or disbursements (including reasonable, documented and invoiced fees, charges and disbursements of one firm of primary outside counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, one firm of a single outside local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Credit Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan the use or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries its subsidiaries or AffiliatesAffiliates or Related Parties; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith faith, fraud or willful misconduct of, or breach of applicable law by, such Indemnitee or any of its Related Parties or (2) a material breach in bad faith of the obligations of such Indemnitee hereunder or (B) result from any proceeding solely between or among Indemnitees that does not involve an act or omission by the Borrower or the other Restricted Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead an Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses losses, claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees subject to such conflict taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected withrelating to, or as a result of any claim or liability related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which currently or formerly owned by the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsSubsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith faith, fraud or willful misconduct of, or breach of applicable law by, such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Except as expressly provided in Section 9.05 10.5(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 10.5 shall not apply to Taxes other than any Taxes that represent losses or damages from any non-Tax claim.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waivewaives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof; provided that nothing in this Section 10.5(e) shall limit the Borrower’s indemnity and reimbursement obligations to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with the applicable Indemnitee with respect to which the applicable Indemnitee is entitled to indemnification as set forth in this Section 10.5. No Notwithstanding anything herein to the contrary, no Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunications, electronic or other information transmission systems systems, except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee, in connection with this Agreement or the other Loan Credit Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 10.5 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.5 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: Extended Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.), Two Year Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent Agent, the Arrangers (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement and the other Loan Documents (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this AgreementAgreement or the other Loan Documents) or in connection with the administration of this Agreement or the other Loan Documents and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, fees and out-of-pocket charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & and Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case each such group of enforcement of this Agreement, the Lenders)affected Persons similarly situated.
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced feesout-of-pocket fees and expenses (limited to reasonable and documented legal fees of a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict and has retained, or thereafter retains, its own counsel, of an additional counsel for each group of affected Indemnitees similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:
(a) the execution, delivery or administration of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby;
(b) the use of the proceeds of the Loans; or
(c) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based in contract, tort or any other theory, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrower or any of their Restricted Subsidiaries or Affiliates or creditors (and including any investigation, preparation for, or defense of any pending or threatened claim, litigation, investigation or proceeding); provided that no Indemnitee will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it: (i) has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (B) a material breach of the obligations of such Indemnitee under the Loan Documents or (ii) relates to any proceeding between or among Indemnitees other than (A) claims against Administrative Agent or Arrangers or their respective Affiliates, in each case, in their capacity or in fulfilling their role as the agent or arranger or any other similar role under the Revolving Facility (excluding their role as a Lender) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of the Borrower or its Restricted Subsidiaries.
(3) Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related out-of-pocket expenses, including reasonable, documented and invoiced fees and out-of-pocket charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interestinterest where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict, an additional counsel for all each group of affected Indemnitees subject to such conflict taken as a whole)similarly situated, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than (x) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim and (y) expenses related to the enforcement of Section 2.17 or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.15 or 2.17.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower no Indemnitee or Loan Party shall not assert, and each hereby waivewaives, any claim against any Indemnitee or Loan Party, as applicable, nor will any Indemnitee, Loan Party or any of their respective Affiliates be liable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Letter of Credit, any Loan or the use of the proceeds thereof. No Indemnitee Indemnitee, Loan Party or any of their respective Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided that, nothing in this clause (5) shall relieve any Loan Party of any obligation it may otherwise have hereunder to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, Borrowers agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses (including but not limited to expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) incurred by the Administrative Agent Agent, the Collateral Agent, the Swingline Lender and the Lead Arrangers Issuing Bank in connection with the preparation syndication of the credit facilities provided for herein and the preparation, execution and delivery, and administration of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications modifications, enforcement costs, work-out costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the work-out, enforcement or protection of its rights in connection with this Agreement (including pursuant to Section 5.14 of this Agreement) and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in connection with any such enforcement or protection, or work-out, the case fees, charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)Agents or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead ArrangerAgents, each Lender, each the Issuing BankBank and the Swingline Lender, each Affiliate of their respective Affiliates any of the foregoing Persons and each of their respective directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges charges, expenses and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated herebyTransactions, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iii) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials atMaterials, underon, on under or from any property for which the Borrower Property owned, leased or operated by any Company, or any of its Restricted Subsidiaries is, or is alleged Environmental Claim related in any way to be, liable under Environmental Lawsany Company; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee Indemnitee. No Person (or any of its Related PartiesAffiliates) shall be responsible or liable to another Person or any of its Subsidiaries, Affiliates or stockholders or any other person or entity for any indirect, punitive or consequential damages which may be alleged as a result of this Agreement or the transactions contemplated hereby.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative AgentAgents, the replacement of Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrowers fail to pay any amount required to be paid by it to the Agents, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section 11.03, each Lender severally agrees to pay to the Agents, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Agents, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposure and unused Commitments at the time.
Appears in 2 contracts
Samples: Credit Agreement (Bearingpoint Inc), Credit Agreement (Bearingpoint Inc)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, Borrowers agree to pay all reasonable, documented and or invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent, the Collateral Agent and the Lead Arrangers each L/C Issuer in connection with the preparation of this Agreement and the other Loan DocumentsCredit Documents and in connection with the syndication and distribution of the credit facilities provided for therein, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Administrative Agent, the Collateral Agent, the Lenders, the Swing Line Lender and L/C Issuers) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single one primary outside counsel for the Administrative Agent and the Lead Arrangers Collateral Agent (and in the case of enforcement of this Agreement, the Administrative Agent, the Collateral Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, the Swing Line Lender and L/C Issuers), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders, the Swing Line Lender and L/C Issuers).
(b) The Borrower Parties, jointly and severally, Borrowers agree to indemnify the Administrative and hold harmless each Agent, each Lead Arranger, each Lender, the Swing Line Lender, each Issuing BankL/C Issuer, each of their respective Affiliates (including, without limitation, controlling persons) and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns Related Parties (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all joint and several actions, suits, judgments and other proceedings, investigations, inquiry, losses, claims, damages, liabilities liabilities, obligations, penalties and reasonable and documented out-of-pocket expenses, costs or disbursements (including reasonable, documented and invoiced fees, charges and disbursements of one firm of primary outside counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, one firm of a single outside local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Credit Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan the use or Letter of Credit or the proposed use of the proceeds thereof (including of the Loans or any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Parent Borrower or any of their Subsidiaries its subsidiaries or AffiliatesAffiliates or Related Parties, or (iv) the issuance, amendment, renewal or extension of any Letter of Credit or demand for or any payment (or non-payment) made thereunder and the enforcement or protection of the rights of any L/C Issuer in connection with the Letters of Credit issued hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its such Indemnitee’s Related Parties Parties, or (2) a material breach of the obligations of such Indemnitee or any of its Related Parties hereunder or any of such Indemnitee’s Affiliates, or any of its or their Related Parties, or (B) result from with respect to any proceeding between or among Indemnitees claim that does did not involve an arise out of any act or omission by the Parent Borrower or the other Subsidiaries Restricted Subsidiaries, any dispute between or among Indemnitees (other than any dispute involving claims against the Administrative any Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative an Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, Borrowers agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses losses, claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees subject to such conflict taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected withrelating to, or as a result of any claim related to Environmental Laws and the Parent Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Parent Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Except as expressly provided in Section 9.05 10.5(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 10.5 shall not apply to Taxes other than any Taxes that represent losses or damages from any non-Tax claim.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower no party hereto shall not assert, and hereby waivewaives, any claim against one another or against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document Credit Document, or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any CommitmentLoan, any Loan or the use of the proceeds thereof; provided that nothing in this Section 10.5(e) shall limit the Borrowers’ indemnity and reimbursement obligations to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with the applicable Indemnitee with respect to which the applicable Indemnitee is entitled to indemnification as set forth in this Section 10.5. No Notwithstanding anything herein to the contrary, no Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunications, electronic or other information transmission systems systems, except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee, in connection with this Agreement or the other Loan Credit Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 10.5 shall survive the resignation or removal of the Administrative AgentAgent or any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.5 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement and Pledge and Security Agreement (Lannett Co Inc), Credit and Guaranty Agreement (Lannett Co Inc)
Expenses; Indemnity. The Borrower will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonableincluding, documented without limitation, all out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including, without limitation, reasonable fees and disbursements of counsel for the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply the administration and enforcement of any rights and remedies of the Administrative Agent and Lenders under the Credit Facility, including, without limitation, in connection with the terms any workout, restructuring, bankruptcy or other similar proceeding, creating and perfecting Liens in favor of such Letter Administrative Agent on behalf of Credit) or (iii) any claim, litigation, investigation or proceeding relating Lenders pursuant to any of the foregoingSecurity Document, whether enforcing any Obligations of, or not collecting any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingspayments due from, the Borrower or any Subsidiary Guarantor by reason of their Subsidiaries an Event of Default (including in connection with the sale of, collection from, or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or other realization upon any of its Related Parties the Collateral or (2) a material breach the enforcement of the obligations Subsidiary Guaranty Agreement); consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the nature, scope or value of such Indemnitee hereunder any right or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against remedy of the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in its capacity connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, trustees and advisors, officers and directors, from and against any obligations, losses, penalties, fines, liabilities, settlements, damages, actions, judgments, suits, disbursements, costs and expenses, suffered by any such Person in connection with any claim (including, without limitation, any Environmental Claims), investigation, litigation or in fulfilling its role as other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholeparty thereto) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of any claim related to Environmental Laws and with the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofLoans, this Agreement, any other Loan Document Document, or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred to herein or therein or the transactions contemplated hereby or thereby, including, without limitation, reasonable attorney's and consultant's fees, except to the extent that any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising foregoing directly result from the use by unintended recipients of any information gross negligence or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation willful misconduct of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, party seeking indemnification or other amount requestedtherefor.
Appears in 2 contracts
Samples: Credit Agreement (O Charleys Inc), Credit Agreement (O Charleys Inc)
Expenses; Indemnity. (a) The Borrower Partiesand Holdings agree, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses (including but not limited to expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) incurred by the Administrative Agent Agent, the Collateral Agent, the Swingline Lender and the Lead Arrangers Issuing Bank in connection with the preparation syndication of the credit facilities provided for herein and the preparation, execution and delivery, and administration of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreementincluding any Inventory Appraisal, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications modifications, enforcement costs, work-out costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the work-out enforcement or protection of its rights in connection with this Agreement (including pursuant to Section 9.02 of this Agreement) and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced fees, charges and disbursements of a single Xxxxxx & Xxxxxxx, counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementCollateral Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in connection with any such enforcement or protection, or work-out, the case fees, charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders)Collateral Agent or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arrangerthe Collateral Agent, each Lender, each the Issuing BankBank and the Swingline Lender, each Affiliate of their respective Affiliates any of the foregoing Persons and each of their respective directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges charges, expenses and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated herebyTransactions, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iii) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials atMaterials, underon, on under or from any property for which the Borrower Property owned, leased or operated by any Company, or any of its Restricted Subsidiaries isEnvironmental Claim related in any way to any Company; provided, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or any of its Related PartiesIndemnitee.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Collateral Agent, the Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section 11.03, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposure and unused Commitments at the time.
Appears in 2 contracts
Samples: Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, reasonable documented and invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent Agent, the Collateral Agent, the Joint Lead Arrangers and the Lead Arrangers Joint Bookrunners in connection with the preparation of this Agreement and the other Loan Documents, or by or, with respect to the Administrative Agent (and in the case of enforcement of this AgreementCollateral Agent, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of commitments or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications modifications, supplements or waivers (or proposed amendments, modifications, supplements or waivers) of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including expenses incurred in connection with due diligence, the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single counsel for the Administrative Agent Agent, the Collateral Agent, the Joint Lead Arrangers and the Lead Arrangers Joint Bookrunners, and the reasonable fees, charges and disbursements of one local counsel per jurisdiction, (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses (including Other Taxes) incurred by the Agents or any Lender in connection with the case of enforcement of this AgreementAgreement and the other Loan Documents in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable fees, charges and disbursements of counsel for the Agents and the Lenders (including the reasonable fees, charges and disbursements of counsel for the Agents, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Joint Lead Arrangers and the Joint Bookrunners, and, if necessary, the reasonable fees, charges and disbursements of one firm of local counsel in each appropriate per jurisdiction andand one additional counsel for the affected persons, in taken as a whole, to the case extent of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative AgentAgents, the Additional Agents, each Lead ArrangerL/C Issuer, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, partners, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of (limited to one firm of counsel for all Indemnitees, taken as a whole, to the Agents and their Related Parties and one local counsel to the Agents and their Related Parties in each applicable jurisdiction and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, solely in the case event of an actual or perceived conflict of interest, an one additional counsel for all Indemnitees subject in each applicable material jurisdiction to such conflict taken as a wholethe other Indemnitees) (except the allocated costs of in-house counsel) (collectively, “Damages”), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of or otherwise relating to the Transactions and the other transactions contemplated herebyhereby and the administration of the Loan Documents, including any required filings with the Puerto Rico Treasury Department, (ii) any Loan or Letter of Credit or the use of the proceeds thereof therefrom (including any refusal by an Issuing Bank the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or ), (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or not any other theory and regardless of whether any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third third-party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee Parent or any of its Related Parties subsidiaries or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsAffiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each Agent, each Additional Agent, any L/C Issuer or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties (other than advisors), shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to one counsel to the Agents and their Related Parties and one local counsel to the Agents and their Related Parties in each applicable jurisdiction and, solely in the event of an actual or perceived conflict of interest, one additional counsel in each applicable material jurisdiction to the other Indemnitees) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Parent or any of its subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any property currently or formerly owned, operated or leased by any of them; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
Parties (dfor purposes of this proviso only, each Agent, each Additional Agent, any L/C Issuer or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties (other than advisors), shall be treated as a single Indemnitee). None of the Indemnitees (or any of their respective affiliates) Any indemnification shall be responsible or payments required liable to the Sponsor, Parent, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by the Loan Parties or on behalf of any Agent, any Additional Agent, any L/C Issuer or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of any amounts paid pursuant to Section 2.18, this Section 9.05 shall not apply to Taxes, except Taxes that represent Damages arising from a non-Tax claim (i.e., for the avoidance of doubt, indemnification or payments required by under this Section 9.05 in respect of a non-Tax claim shall be made to the Loan Parties under Section 2.17extent necessary to place the indemnitee in the same after-Tax position that the indemnitee would have been in absent the occurrence of the events giving rise to such indemnification).
(ed) To the fullest extent permitted by applicable law, Holdings Parent and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. .
(f) All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedas promptly as practicable.
Appears in 2 contracts
Samples: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent (including the reasonable and documented out-of-pocket fees, disbursements and other charges of counsel) on or after the Lead Arrangers in connection Closing Date within 30 days of a written demand therefor, together with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent backup documentation supporting such reimbursement request (and in the case of enforcement of this Agreement, the Administrative Agent and the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (and the other Credit Documents and any contemplated Successor Borrower Transaction, including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)) or in connection with the administration of this Agreement, including but limited, in the case of legal fees and expenses, to the actual reasonable, documented and invoiced out-of-pocket fees, charges and disbursements of a single one U.S and one Canadian counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Administrative Agent and the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), and, if reasonably necessary, one firm of local counsel in each appropriate relevant local jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreementto all affected persons, the Lenders)taken as a whole.
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify and hold harmless the Administrative Agent, each Lead Arranger, Agent and each Lender, each Issuing Bank, each of their respective Affiliates (including, without limitation, controlling persons) and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all joint and several actions, suits, judgments and other proceedings, investigations, inquiry, losses, claims, damages, liabilities liabilities, obligations, penalties and reasonable and documented out-of-pocket expenses, costs or disbursements (but limited, in the case of legal fees and expenses, to the actual reasonable, documented and invoiced out-of-pocket fees, charges and disbursements of one firm of U.S. and one Canadian counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, one firm of a single outside local counsel in each appropriate relevant jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Credit Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan the use or Letter of Credit or the proposed use of the proceeds of the Loans thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries its subsidiaries or AffiliatesAffiliates or Related Parties; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith negligence or willful misconduct of, or breach of applicable law by, such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding solely between or among Indemnitees that does not involve an act or omission by the Borrower or the other Restricted Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent ). Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return any and all amounts paid by the Borrower to such Indemnitee for fees, expenses or a Lead Arranger or any similar role hereunder (excluding its role as a Lender))damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof.
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses losses, claims, damages, liabilities and related expenses, including but limited, in the case of legal fees and expenses, to the actual reasonable, documented and invoiced out-of-pocket fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, one firm of local counsel in each appropriate relevant jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced out-of-pocket consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected withrelating to, or as a result of any claim or liability related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which currently or formerly owned by the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsSubsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith fraud or willful misconduct of, or breach of applicable law by, such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Except as expressly provided in Section 9.05 10.5(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 10.5 shall not apply to Taxes other than any Taxes that represent losses or damages from any non-Tax claim.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waivewaives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof; provided that nothing in this Section 10.5(e) shall limit the Borrower’s indemnity and reimbursement obligations to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with the applicable Indemnitee with respect to which the applicable Indemnitee is entitled to indemnification as set forth in this Section 10.5. No Notwithstanding anything herein to the contrary, no Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunications, electronic or other information transmission systems systems, except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Indemnitee, in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or therebyCredit Documents.
(f) The agreements in this Section 9.05 10.5 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.5 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement (Concordia International Corp.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent and the Joint Lead Arrangers (and in the case of enforcement of this AgreementArrangers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case of any actual or perceived conflict of interestLoans made hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead ArrangerArrangers, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument (including, without limitation, the Senior Lender Intercreditor Agreement, the Second Priority Intercreditor Agreement and the Senior Fixed Lender Intercreditor Agreement) or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans, or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, the Joint Lead Arrangers or any Lender shall be treated as several and separate Indemnitees). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and the Borrower or any of its Related Parties.
their Subsidiaries, or (dB) Any indemnification any actual or payments required alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Property; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to the Funds, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other Person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Parties Document, or any investigation made by or on behalf of the Administrative Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ed) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Senior Secured Bridge Loan Credit Agreement (Packerware Corp)
Expenses; Indemnity. (a) The Borrower Parties, jointly shall reimburse (a) all reasonable and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by of the Administrative Agent, the Collateral Agent and each Arranger (including due diligence expenses, syndication expenses, travel expenses and reasonable fees, charges and disbursements of one firm of counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and one local counsel in any relevant jurisdiction), and, solely in the case of an actual or potential conflict of interest, of one additional counsel (and one additional local counsel in any relevant jurisdiction)) incurred in connection with the preparation of this Agreement and the other Loan DocumentsDocuments or the administration, amendment, modification or waiver thereof and (b) if an Event of Default occurs, all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and each Lender, including the fees and disbursements of one firm of counsel (and one local counsel in any relevant jurisdiction) and, solely in the case of enforcement an actual or potential conflict of this Agreementinterest, the Lendersof one additional counsel (and, if reasonably necessary, one additional local counsel in any relevant jurisdiction) in connection with the preparationsuch Event of Default and collection, execution bankruptcy, insolvency, administration and delivery, amendment, modification, waiver or other enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)proceedings resulting therefrom.
(b) The Borrower Parties, jointly shall indemnify and severally, agree to indemnify the Administrative Agent, each Lead Arranger, hold harmless each Lender, each Issuing Bankthe Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), each of their respective Affiliates Arranger and each of their respective affiliates and their respective officers, directors, officers, employees, agents, advisors, controlling personsand agents (each, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “IndemniteeIndemnified Person”) against, from and to hold each Indemnitee harmless from, against any and all losses, claims, damagesdamages and liabilities (including Environmental Liabilities) and related reasonable and documented out-of-pocket expenses (limited, liabilities in the case of legal counsel, to the reasonable and reasonable, documented and invoiced out-of-pocket fees, charges and disbursements of one firm of (1) primary counsel for all Indemniteesthe Indemnified Persons taken as a whole and, if deemed reasonably necessary by the Indemnified Persons, of one (1) local counsel to the Indemnified Persons taken as a whole in each relevant jurisdiction and, in the event of any actual or potential conflict of interest, one (1) additional counsel for the parties subject to such conflict, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction () to which any such Indemnified Person may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees become subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of (i) connection with the execution or delivery of this Agreement or Agreement, any other Loan DocumentDocuments (including, but not limited to, any notice given or purportedly given by or on behalf of the performance by the parties hereto and thereto of their respective obligations thereunder or Borrower), the consummation of the Transactions transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its related parties only, the administration of this Agreement and the other transactions contemplated herebyLoan Documents (including in respect of any matters addressed in Section 2.17), (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Term Loans thereunder or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether or not any Indemnitee Indemnified Person is a party thereto and regardless of whether such matter is initiated brought by a third party or by Holdings, the Borrower Parent or any of their Subsidiaries its affiliates (any of the foregoing, a “Proceeding”), and to reimburse each Indemnified Person upon demand for any reasonable and documented legal or Affiliatesother expenses incurred in connection with investigating or defending any of the foregoing; provided that such (i) the foregoing indemnity shall will not, as to any IndemniteeIndemnified Person, be available apply to the extent that such losses, claims, damages, liabilities or related expenses (A) to the extent they are determined found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted arise from (1) the gross negligencebad faith, bad faith or willful misconduct or gross negligence of such Indemnitee Indemnified Person or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or Persons, (B) result to the extent resulting from any proceeding between or among Indemnitees Proceeding that does not involve an act or omission of Parent or any of its Affiliates and that is brought by the Borrower or the other Subsidiaries (an Indemnified Person solely against another Indemnified Person, other than claims against the Administrative Agent Agent, any Arranger or any Lead Arranger other agent in its capacity or in fulfilling its role as an agent or Arranger under the Administrative Agent Loan Documents or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(cC) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that resulting from a material breach by such losses, claims, damages, liabilities Indemnified Person or related expenses are determined any Related Person thereof of its obligations under the Loan Documents as found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct jurisdiction. The provisions of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Obligations, the use by unintended recipients occurrence of the Termination Date, the invalidity or unenforceability of any information term or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on within 15 days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested. A “Related Person” of an Indemnified Person shall mean (a) any controlling person, controlled affiliate or subsidiary of such Indemnified Person, (b) the respective directors, officers or employees of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons and (c) the respective agents and advisors of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Expenses; Indemnity. (a) The Borrower Partiesand the Guarantor agree, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and the Lead Arrangers Issuing Bank in connection with the preparation and administration of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) Documents or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including consultants', auditors' and appraisers' fees and expenses and the reasonable, documented and invoiced fees, charges and disbursements of a single counsel Cravath, Swaine & Moorx xxx Wachtell, Lipton, Rosex & Xatz, xxunsel for the Administrative Agent and the Lead Arrangers (Collateral Agent, and in the case of enforcement of this AgreementAlvaxxx & Xarshal, Inc., financial consultant to the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in connection with any such enforcement or protection, the case reasonable fees, charges and disbursements of any actual or perceived conflict of interestother counsel, one additional firm of counsel appraisers and auditors for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders)Collateral Agent or any Lender.
(b) The Borrower Partiesand the Guarantor agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arrangerthe Collateral Agent, each Lender, each Lender and the Issuing Bank, each Affiliate of their respective Affiliates any of the foregoing persons and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, employees and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Credit Agreement (PSF Holdings LLC)
Expenses; Indemnity. The Borrower will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonableincluding, documented without limitation, all reasonable out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including, without limitation, reasonable fees and disbursements of counsel for the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply the administration and enforcement of any rights and remedies of the Administrative Agent and Lenders under the Credit Facility, including, without limitation, in connection with any workout, restructuring, bankruptcy or other similar proceeding, creating and perfecting Liens in favor of the terms Administrative Agent on behalf of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating Lenders pursuant to any of the foregoingSecurity Document, whether enforcing any Obligations of, or not collecting any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingspayments due from, the Borrower or any Guarantor by reason of their Subsidiaries an Event of Default (including in connection with the sale of, collection from, or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or other realization upon any of its Related Parties the Collateral or (2) a material breach the enforcement of the obligations Guaranty Agreement); consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the nature, scope or value of such Indemnitee hereunder any right or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against remedy of the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in its capacity connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, trustees, officers and directors, from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in connection with any claim (including, without limitation, any Environmental Claims), investigation, litigation or in fulfilling its role as other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholeparty thereto) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of any claim related to Environmental Laws and with the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofLoans, this Agreement, any other Loan Document Document, or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred to herein or therein or the transactions contemplated hereby or thereby, including, without limitation, reasonable attorney’s and consultant’s fees, except to the extent that any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising foregoing directly result from the use by unintended recipients of any information gross negligence or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation willful misconduct of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, party seeking indemnification or other amount requestedtherefor.
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Expenses; Indemnity. (a1) The Each Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred (i) by the Administrative Agent and the Lead Arrangers Agents in connection with the preparation syndication of this Agreement and the other Loan DocumentsRevolving Facility, or (ii) by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) Agents in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement or the other Loan Documents (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower Borrowers or provided for in this Agreement), or (iii) or by each Lender, each Issuing Bank and the Swingline Lender in connection with the administration enforcement of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)other Loan Documents, including (x) the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Agents, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, where the indemnified person affected by such conflict informs the Borrower Representative of such conflict, one additional firm of counsel for the Administrative Agent Agents asserting the conflict, and the Lead Arrangers (and y) in the case of enforcement of this Agreement, the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Lenders), the Issuing Banks and the Swingline Lender (in the aggregate) and, in the case of any actual or perceived conflict of interest, where the indemnified person affected by such conflict informs the Borrower Representative of such conflict, one additional firm of counsel for the indemnified person asserting the conflict.
(b2) The Each Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, the Swingline Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole firm of
(and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to the Transactions or any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the any Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors or any other Person; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it: (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder or Related Parties under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent Agents or any Lead Arranger their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger, syndication agents, senior managing agent or documentation agents or any other similar role hereunder under the Revolving Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of Holdings, the Borrowers or their Restricted Subsidiaries.
(c3) Subject to and without limiting the generality of the foregoing sentence, the each Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the any Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the any Borrower or any Restricted Subsidiaries would reasonably be expected to be held liable under Environmental Laws, regardless of whether such matter is initiated by Holdings, any Borrower or any of its their Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsAffiliates or creditors of any other Person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e5) To the fullest extent permitted by applicable law, Holdings and the any Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Letter of Credit, any Loan or the use of the proceeds thereof; provided that nothing contained in this sentence shall limit the indemnity and reimbursement obligations set forth in clauses (1) through (3) of this Section 10.05. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Loan Agreement (Ulta Beauty, Inc.)
Expenses; Indemnity. The Borrowers will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonable, documented without limitation all out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including without limitation reasonable fees and disbursements of counsel for the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply with the terms administration and enforcement of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any rights and remedies of the foregoingAdministrative Agent and Lenders under the Credit Facility, whether including, without limitation, in connection with any workout, restructuring, bankruptcy or not other similar proceeding, enforcing any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party Obligations of, or collecting any payments due from, any Borrower or by Holdingsreason of an Event of Default; consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the Borrower nature, scope or value of any right or remedy of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in its capacity connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in connection with any claim (including, without limitation, any Environmental Claims or in fulfilling its role as civil penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger party thereto, and whether or not any such claim, investigation, litigation or other proceeding is brought or otherwise instituted by any Borrower or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholethird party) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of any claim related to Environmental Laws and with the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofLoans, this Agreement, any other Loan Document or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred herein or therein or the transactions contemplated hereby or thereby, including, without limitation, reasonable attorney's and consultant's fees, except to the extent that any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising foregoing directly result from the use by unintended recipients of any information gross negligence or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation willful misconduct of the Administrative Agent, the replacement party seeking indemnification therefore as determined in a final and non-appealable judgment by a court of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedcompetent jurisdiction.
Appears in 1 contract
Samples: Credit Agreement (Belk Inc)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and or invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent Agent, the Collateral Agent, each L/C Issuer and the Lead Arrangers each Arranger in connection with the preparation of this Agreement and the other Loan DocumentsCredit Docu- ments and in connection with the syndication and distribution of the credit facilities provided for therein, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Administrative Agent, the Collateral Agent, the Lenders, the Swing Line Lender and L/C Issuers) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single one primary outside counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Administrative Agent, the Collateral Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, the Swing Line Lender and L/C Issuers), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders, the Swing Line Lender and L/C Issuers).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative and hold harmless each Agent, each Lead Arranger, each Lender, the Swing Line Lender, each Issuing BankL/C Issuer, each of their respective Affiliates (including, without limitation, controlling persons) and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all joint and several actions, suits, judgments and other proceedings, investigations, inquiry, losses, claims, damages, liabilities liabilities, obligations, penalties and reasonable and documented out-of-pocket expenses, costs or disbursements (including reasonable, documented and invoiced fees, charges and disbursements of one firm of primary outside counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, one firm of a single outside local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Credit Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) the use or proposed use of the proceeds of the Loans or the use of any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries its subsidiaries or AffiliatesAffiliates or Related Parties; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith faith, fraud or willful misconduct of, or breach of applicable law by, such Indemnitee or any of its Related Parties or (2) a material breach in bad faith of the obligations of such Indemnitee hereunder or (B) result from any proceeding solely between or among Indemnitees that does not involve an act or omission by the Borrower or the other Restricted Subsidiaries (other than claims against the Administrative any Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative an Agent or a Lead an Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses losses, claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees subject to such conflict taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected withrelating to, or as a result of any claim or liability related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which currently or formerly owned by the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental LawsSubsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith faith, fraud or willful misconduct of, or breach of applicable law by, such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Except as expressly provided in Section 9.05 10.5(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 10.5 shall not apply to Taxes other than any Taxes that represent losses or damages from any non-Tax claim.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waivewaives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof; provided that nothing in this Section 10.5(e) shall limit the Borrower’s indemnity and reimbursement obligations to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with the applicable Indemnitee with respect to which the applicable Indemnitee is entitled to indemnification as set forth in this Section 10.5. No Notwithstanding anything herein to the contrary, no Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunications, electronic or other information transmission systems systems, except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee, in connection with this Agreement or the other Loan Credit Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 10.5 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.5 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Concordia International Corp.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Shearman & Sterling LLP, counsel for the Administrative Agent and the Sole Lead Arrangers (and in the case of enforcement of this AgreementArranger, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case of any actual or perceived conflict of interestLoans made hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Sole Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument (including, without limitation, the Intercreditor Agreement and the Senior Lender Intercreditor Agreement) or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans, or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall notprovided, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, the Sole Lead Arranger or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Property; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
. None of the Indemnitees (dor any of their respective affiliates) Any indemnification shall be responsible or payments required liable to the Fund, Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ed) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Credit Agreement (Covalence Specialty Adhesives LLC)
Expenses; Indemnity. (a) The Borrower Partiesand Holdings agree, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses (including but not limited to expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) incurred by the Administrative Agent Agent, the Collateral Agent, the Swingline Lender and the Lead Arrangers Issuing Bank in connection with the preparation syndication of the credit facilities provided for herein and the preparation, execution and delivery, and administration of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreementincluding any Inventory Appraisal, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications modifications, enforcement costs, work-out costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the work-out enforcement or protection of its rights in connection with this Agreement (including pursuant to Section 9.02 of this Agreement) and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced fees, charges and disbursements of a single Latham & Watkins, counsel for the Administrative Agent and the Lead Arrangers (and Collaxxxxx Agexx, xxx, in the case of connection with any such enforcement of this Agreementor protection, or work-out, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)fees, one firm of local counsel in each appropriate jurisdiction and, in the case charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders)Collateral Agent or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arrangerthe Collateral Agent, each Lender, each the Issuing BankBank and the Swingline Lender, each Affiliate of their respective Affiliates any of the foregoing Persons and each of their respective directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person Person being called an “Indemnitee”"INDEMNITEE") against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges charges, expenses and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated herebyTransactions, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iii) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials atMaterials, underon, on under or from any property for which the Borrower Property owned, leased or operated by any Company, or any of its Restricted Subsidiaries isEnvironmental Claim related in any way to any Company; provided, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or any of its Related PartiesIndemnitee.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any 149 term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Collateral Agent, the Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section 11.03, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender's pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro rata share" shall be determined based upon its share of the sum of the total Revolving Exposure and unused Commitments at the time.
Appears in 1 contract
Expenses; Indemnity. Each party to this Agreement agrees to pay all its own fees and expenses in connection with the Loan Documents and any amendment, modification or waiver of the terms thereof; provided, however, that the Borrower agrees to (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by of the Administrative Agent and the Lead Arrangers Arranger in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including without limitation the reasonable, documented reasonable out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single one counsel for representing the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreementii) where applicable, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)preparation, one firm of local counsel in each appropriate jurisdiction and, in the case execution and delivery of any actual waiver, amendment or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and the Arranger or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including without limitation reasonable fees and disbursements of counsel representing the performance by Administrative Agent and the parties hereto Lenders, and thereto of their respective obligations thereunder or the consummation (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent, the Arranger and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply with the terms enforcement of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any rights and remedies of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by HoldingsAdministrative Agent, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall notArranger and the Lenders under the Credit Facility, as to any Indemniteeincluding, be available to the extent that such lossesreasonable under the circumstances, claimsconsulting with accountants, damagesattorneys and other Persons concerning the nature, liabilities scope or related expenses (A) are determined by a final, non-appealable judgment value of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith any right or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach remedy of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by Administrative Agent, the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role Lender hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems factual matters in connection with this Agreement or therewith, which expenses shall include without limitation the other Loan Documents or the transactions contemplated reasonable fees and disbursements of such Persons. The Borrower hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of indemnifies, exonerates and holds the Administrative Agent, the replacement Arranger and the Lenders, and each of their respective Affiliates, officers, directors, employees and agents (each an "Indemnitee") free and harmless from and against any and all losses, penalties, fines, liabilities, settlements, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements, reasonable consultants' fees and settlement costs) (collectively, the "Indemnified Liabilities") incurred by any Indemnitee in connection with any claim, investigation, litigation or other proceeding (whether or not the Administrative Agent, the Arranger or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Credit Facility, the Loans, the Letters of Credit, this Agreement or any other Loan Document or as a result of the breach of any Lenderof the Credit Parties' obligations hereunder, except for any such Indemnified Liabilities arising for the account of a particular Indemnitee by reason of the relevant Indemnitee's gross negligence or willful misconduct as determined by a final and nonappealable decision of a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the termination Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due Indemnified Liabilities which is permissible under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedapplicable law.
Appears in 1 contract
Samples: Credit Agreement (Pittston Co)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and or invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent Agent, the Collateral Agent, each L/C Issuer and the Lead Arrangers each Arranger in connection with the preparation of this Agreement and the other Loan DocumentsCredit Documents and in connection with the syndication and distribution of the credit facilities provided for therein, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Administrative Agent, the Collateral Agent, the Lenders, the Swing Line Lender and L/C Issuers) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single one primary outside counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Administrative Agent, the Collateral Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, the Swing Line Lender and L/C Issuers), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders, the Swing Line Lender and L/C Issuers).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative and hold harmless each Agent, each Lead Arranger, each Lender, the Swing Line Lender, each Issuing BankL/C Issuer, each of their respective Affiliates (including, without limitation, controlling persons) and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns Related Parties (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all joint and several actions, suits, judgments and other proceedings, investigations, inquiry, losses, claims, damages, liabilities liabilities, obligations, penalties and reasonable and documented out-of-pocket expenses, costs or disbursements (including reasonable, documented and invoiced fees, charges and disbursements of one firm of primary outside counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, one firm of a single outside local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Credit Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan the use or Letter of Credit or the proposed use of the proceeds thereof (including of the Loans or any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries its subsidiaries or AffiliatesAffiliates or Related Parties, or (iv) the issuance, amendment, renewal or extension of any Letter of Credit or demand for or any payment (or non-payment) made thereunder and the enforcement or protection of the rights of any L/C Issuer in connection with the Letters of Credit issued hereunder; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its such Indemnitee’s Related Parties Parties, or (2) a material breach of the obligations of such Indemnitee or any of its Related Parties hereunder or any of such Indemnitee’s Affiliates, or any of its or their Related Parties, or (B) result from with respect to any proceeding between or among Indemnitees claim that does did not involve an arise out of any act or omission by the Borrower or the other Subsidiaries Restricted Subsidiaries, any dispute between or among Indemnitees (other than any dispute involving claims against the Administrative any Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative an Agent or a Lead an Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses losses, claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees subject to such conflict taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected withrelating to, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Except as expressly provided in Section 9.05 10.5(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 10.5 shall not apply to Taxes other than any Taxes that represent losses or damages from any non-Tax claim.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower no party hereto shall not assert, and hereby waivewaives, any claim against one another or against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document Credit Document, or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any CommitmentLoan, any Loan or the use of the proceeds thereof; provided that nothing in this Section 10.5(e) shall limit the Borrower’s indemnity and reimbursement obligations to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with the applicable Indemnitee with respect to which the applicable Indemnitee is entitled to indemnification as set forth in this Section 10.5. No Notwithstanding anything herein to the contrary, no Indemnitee shall be liable for any damages arising from the use by unintended recipients others of any information or other materials distributed by it obtained through telecommunications, electronic or other information transmission systems systems, except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee, in connection with this Agreement or the other Loan Credit Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 10.5 shall survive the resignation or removal of the Administrative AgentAgent or any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.5 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Each Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided Borrowers and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Cravath, Swaine & Xxxxx LLP, counsel for the Administrative Agent, the Collateral Agent and the Co-Lead Arrangers (and in the case of enforcement of this AgreementArrangers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction; and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Each Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Co-Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto thereto, and regardless of whether such matter any of the foregoing is raised or initiated by a third party or by Intermediate Holdings, the any Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee other Loan Party or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentenceSubsidiary; provided, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, the Co-Syndication Agents, any Co-Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, each Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property currently or formerly owned or operated by Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
. None of the Indemnitees (dor any of their respective affiliates) Any indemnification shall be responsible or payments required liable to Holdings, Intermediate Holdings, any Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Revolving Credit Facility or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ed) To the fullest extent permitted by applicable law, Holdings, Intermediate Holdings and the Borrower Borrowers shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to promptly pay all reasonable, documented reasonable out of pocket costs and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including but not limited to expenses incurred in connection with due diligence and initial travel, courier, reproduction, printing and ongoing delivery expenses) (i) incurred by the Administrative Agent, Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or Agent, and Issuing Bank in connection with the syndication of the credit facilities provided for herein and the preparation, execution, delivery and administration of this Agreement and the other Loan Documents and the perfection and maintenance of the Liens securing the Collateral or in connection with any amendments, modifications consents, enforcement costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or (ii) incurred by the Agents or after the occurrence and during the continuation of an Event of Default any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Xxxxxxxxx & Xxxxxxxx LLP, counsel for the Administrative Agent and the Lead Arrangers (Collateral Agent, and in the case of enforcement of this Agreementany auditors, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)accountants, one firm of local counsel in each appropriate jurisdiction consultants, appraisers or other advisors and, in connection with any such enforcement or protection, the case fees, charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)Agents or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead ArrangerAgents, each Lender, each the Issuing Bank, each Affiliate of their respective Affiliates any of the foregoing persons and each of their respective partners, controlling persons, directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out of pocket costs and any and all losses, claims, damages, liabilities liabilities, penalties, judgments, suits and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution execution, delivery, performance, administration or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation enforcement of the Transactions and the other transactions contemplated herebyLoan Documents, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iv) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials Materials, on, at, under, on under or from any property for which the Borrower owned, leased or operated by any Company, or any of its Restricted Subsidiaries isEnvironmental Claim related in any way to any Company, or is alleged to beIN ALL CASES, liable under Environmental LawsWHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee. In connection with any claim, demand, action or cause of action covered by this Section 11.03, or the preparation therefor, the Lender or other Indemnitee or any shall be entitled to select its own counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses of its Related Partiessuch counsel.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans or Reimbursement Obligations, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative AgentAgents, the replacement of Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrower fails to promptly pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, or the Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Agents and/or the Issuing Bank, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Agents or the Issuing Bank in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Exposure and unused Commitments at the time.
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to promptly pay all reasonable, documented reasonable out of pocket costs and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including but not limited to expenses incurred in connection with due diligence and initial travel, courier, reproduction,
(i) incurred by the Administrative Agent and ongoing Collateral examination to Agent, the extent incurred with Swingline Lender and the reasonable prior approval of the Borrower or provided for in this Agreement) or Issuing Bank in connection with the syndication of the credit facilities provided for herein and the preparation, execution, delivery and administration of this Agreement and the other Loan Documents and the perfection and maintenance of the Liens securing the Collateral or in connection with any amendments, modifications consents, enforcement costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or (ii) incurred by the Agents or after the occurrence and during the continuation of an Event of Default any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Cxxxxx Xxxxxx & Rxxxxxx llp, counsel for the Administrative Agent and the Lead Arrangers (Collateral Agent, and in the case of enforcement of this Agreementany auditors, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)accountants, one firm of local counsel in each appropriate jurisdiction consultants, appraisers or other advisors and, in connection with any such enforcement or protection, the case fees, charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)Agents or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead ArrangerAgents, each Lender, each the Issuing BankBank and the Swingline Lender, each Affiliate of their respective Affiliates any of the foregoing persons and each of their respective partners, controlling persons, directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out of pocket costs and any and all losses, claims, damages, liabilities liabilities, penalties, judgments, suits and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution execution, delivery, performance, administration or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation enforcement of the Transactions and the other transactions contemplated herebyLoan Documents, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iv) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials Materials, on, at, under, on under or from any property for which the Borrower owned, leased or operated by any Company, or any of its Restricted Subsidiaries is, or is alleged Environmental Claim related in any way to be, liable under Environmental Lawsany Company; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or any of its Related PartiesIndemnitee.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans or Reimbursement Obligations, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative AgentAgents, the replacement of Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrower fails to promptly pay any amount required to be paid by it to the Administrative Agent and the Collateral Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Agents, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Agents, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposure and unused Commitments at the time.
Appears in 1 contract
Expenses; Indemnity. (a1) The If the Recapitalization Transactions are consummated and the ClosingAmendment No. 2 Effective Date occurs, the Borrower Parties, jointly and severally, agreesBorrowers agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers ArrangersTerm Loan Steering Committee (as defined in the TSA) in connection with the preparation of this Agreement and the other Loan DocumentsDocuments (including as to post-closing matters), or by the Administrative Agent (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower BorrowerBorrowers or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx Cravath, Swaine & Xxxxxxxx LLP)Xxxxx LLP)a separate single counsel for the Required 2019 Extending Term Lenders, one firm of local counsel for the Administrative Agent in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and Agent, the Lead Arrangers (and ArrangersRequired 2019 Extending Term Lenders and, in the case of enforcement of this Agreement, the Lenders).
(b2) The TheEach Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Lead Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions TransactionsRecapitalization Transactions, the MyTheresa Designation, the MyTheresa Distribution, the Xxxxx Transaction (as defined in Section 10.22) and the other transactions contemplated hereby, hereby and thereby;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Term Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower BorrowerBorrowers or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent or any Lead Arranger Arrangers or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger or any other similar role hereunder under the Term Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this paragraph (2) or (B) claims arising out of any act or omission on the part of Holdings, the BorrowerBorrowers or their Restricted Subsidiaries.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agreesBorrowers agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower BorrowerBorrowers or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower BorrowerBorrowers or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than (x) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim and (y) expenses related to the enforcement of Section 2.14 or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.14.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower BorrowerBorrowers shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Term Loan or xxxxx the use of the proceeds thereof, the Recapitalization Transactions, the MyTheresa Designation, the MyTheresa Distribution, the Xxxxx Transaction (as defined in Section 10.22) and the other transactions contemplated hereby and thereby. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Each Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided Borrowers and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Simpson, Thacher & Xxxxxxxx LLP, counsel for the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers (and in the case of enforcement of this AgreementArrangers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction; and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Each Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto thereto, and regardless of whether such matter any of the foregoing is raised or initiated by a third party or by Intermediate Holdings, the any Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee other Loan Party or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentenceSubsidiary; provided, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, the Syndication Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, each Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property currently or formerly owned or operated by Holdings, Intermediate Holdings, any Borrower or any of the Subsidiaries; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
. None of the Indemnitees (dor any of their respective affiliates) Any indemnification shall be responsible or payments required liable to Holdings, Intermediate Holdings, any Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Revolving Credit Facility or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ed) To the fullest extent permitted by applicable law, Holdings, Intermediate Holdings and the Borrower Borrowers shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Amendment Agreement (Momentive Performance Materials Inc.)
Expenses; Indemnity. The Borrower agrees to (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by of the Administrative Agent and the Lead Arrangers in connection with (i) the preparation preparation, negotiation, execution and delivery of this Agreement and the each other Loan DocumentsDocument, or by whenever the Administrative Agent (same shall be executed and in delivered, including without limitation the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution reasonable out-of-pocket syndication and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence expenses and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent (including the allocated cost of internal counsel) and (ii) the Lead Arrangers (preparation, negotiation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and the Arrangers or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document or the interpretation of any Loan Document, including without limitation reasonable fees and disbursements of counsel for the performance by Administrative Agent (including the parties hereto and thereto allocated cost of their respective obligations thereunder or the consummation internal counsel), (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent, the Arrangers and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply with the terms enforcement of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any rights and remedies of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by HoldingsAdministrative Agent, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall notArrangers and the Lenders under the Credit Facility, as to any Indemniteeincluding, be available to the extent that such lossesreasonable under the circumstances, claimsconsulting with accountants, damagesattorneys and other Persons concerning the nature, liabilities scope or related expenses (A) are determined by a final, non-appealable judgment value of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith any right or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach remedy of the obligations of such Indemnitee hereunder or (B) result from Administrative Agent, any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role Lender hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems factual matters in connection with this Agreement or therewith, which expenses shall include without limitation the other Loan Documents or reasonable fees and disbursements of such Persons (including the transactions contemplated hereby or thereby.
allocated cost of internal counsel), and (fc) The agreements in this Section 9.05 shall survive the resignation of defend, indemnify and hold harmless the Administrative Agent, the replacement Arrangers and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in connection with any claim, investigation, litigation or other proceeding (whether or not the Administrative Agent, any Arranger or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with this Agreement, the Credit Facility, any other Loan Document, the Loans or the Notes or as a result of the breach of any Lender, the termination of the Commitments Credit Parties' obligations hereunder, including without limitation reasonable attorney's fees (including the allocated cost of internal counsel), consultant's fees and settlement costs (but excluding any losses, penalties, fines liabilities, settlements, damages, costs and expenses to the repayment, satisfaction extent incurred by reason of the gross negligence or discharge willful misconduct of all the other Obligations and the termination Person to be indemnified (as finally determined by a court of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedcompetent jurisdiction)).
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or and/or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxx, Xxxxxx & Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)Arrangers.
(b) The Borrower Parties, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, whole and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by HoldingsParent, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-non appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead an Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-non appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.15.
(e) To the fullest extent permitted by applicable law, Holdings Parent and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Revolving Credit Agreement (Smart & Final Stores, Inc.)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, theThe Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent Agent, the Arrangers (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement and the other Loan Documents (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this AgreementAgreement or the other Loan Documents) or in connection with the administration of this Agreement or the other Loan Documents and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including legal fees but limited to the reasonable, documented and invoiced fees, fees and out-of-pocket charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Arrangers, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case each such group of enforcement of this Agreement, the Lenders)affected Persons similarly situated taken as a whole.
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced feesout-of-pocket fees and expenses (limited to reasonable and documented legal fees of a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict and has retained, or thereafter retains, its own counsel, of an additional counsel for each group of affected Indemnitees similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:
(a) the execution, delivery or administration of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby;
(b) the use of the proceeds of the Loans; or
(c) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based in contract, tort or any other theory, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by the Borrower or any of their Restricted Subsidiaries or Affiliates or creditors (and including any investigation, preparation for, or defense of any pending or threatened claim, litigation, investigation or proceeding); or
(d) to the extent related to the foregoing, non-compliance with or liability under Environmental Laws by or of the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any Restricted Subsidiaries would reasonably be expected to be held liable under Environmental Laws;
(3) Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related out-of-pocket expenses, including reasonable, documented and invoiced fees and out-of-pocket charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interestinterest where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict, an additional counsel for all each group of affected Indemnitees subject to such conflict taken as a whole)similarly situated, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than (x) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim and (y) expenses related to the enforcement of Section 2.17 or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.15 or 2.17.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower no Indemnitee or Loan Party shall not assert, and each hereby waivewaives, any claim against any Indemnitee or Loan Party, as applicable, nor will any Indemnitee, Loan Party or any of their respective Affiliates be liable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Letter of Credit, any Loan or the use of the proceeds thereof. No Indemnitee Indemnitee, Loan Party or any of their respective Affiliates shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided that, nothing in this clause (5) shall relieve any Loan Party of any obligation it may otherwise have hereunder to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Expenses; Indemnity. The Borrower and each other Credit Party will (a) The Borrower Parties, jointly and severally, agree to pay all reasonablereasonable and documented out‑of‑pocket expenses (including, documented and invoiced out-of-pocket expenses incurred by without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution execution, delivery and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonableincluding, without limitation, all reasonable and documented out‑of‑pocket syndication and invoiced due diligence expenses and reasonable and documented out‑of‑pocket fees, disbursements and other charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including, without limitation, reasonable and documented out‑of‑pocket fees and disbursements of counsel for the performance by the parties hereto Administrative Agent, (b) pay all reasonable and thereto of their respective obligations thereunder or the consummation documented out‑of‑pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply with the terms enforcement of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any rights and remedies of the foregoingAdministrative Agent and Lenders under the Credit Facilities, whether including, without limitation, in connection with any workout, restructuring, bankruptcy or not other similar proceeding, enforcing any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party Obligations of, or by Holdingscollecting any payments due from, the Borrower or any Guarantor by reason of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to an Event of Default (including in connection with the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach enforcement of the obligations Guaranty Agreement); consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the nature, scope or value of such Indemnitee hereunder any right or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against remedy of the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors (including any Affiliate in its capacity as an arranger or bookrunner hereunder), from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in fulfilling its role as connection with any claim (including, without limitation, any Environmental Claims or civil penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholeparty thereto) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result with any Extension of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofCredit, this Agreement, any other Loan Document Document, or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred to herein or therein or the transactions contemplated hereby or thereby, or any Commitment, action taken or omitted to be taken by the Administrative Agent under or in connection with any Loan or the use of the proceeds thereofforegoing including, without limitation, reasonable attorney’s and consultant’s fees, except to the extent that any of the foregoing are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the party seeking indemnification therefor. No Indemnitee This Section 13.3 shall be liable for not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreementnon‑Tax claim. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.CHAR2\1566724v8
Appears in 1 contract
Samples: Credit Agreement (Blackbaud Inc)
Expenses; Indemnity. (a%3) The Borrower Parties, jointly and severally, Borrowers agree to pay (i) all reasonable, reasonable and documented and invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonablereasonable fees, documented charges and invoiced disbursements of one primary counsel to the Administrative Agent and the Joint Lead Arrangers, and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in connection with the enforcement of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the fees, charges and disbursements of a single counsel for the Administrative Agent Senior Creditors, taken as a whole and a single counsel for the Lead Arrangers (and in the case of enforcement of this AgreementAffiliate Lenders, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)taken as a whole,, one firm of and, if necessary, a single local counsel in each appropriate jurisdiction for the Senior Creditors, taken as a whole and a single local counsel in each appropriate jurisdiction for the Affiliate Lenders, taken as a whole (and, in the case of any an actual or perceived conflict of interestinterest where such person affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel, one additional of another firm of for such affected person (and, if necessary, a single local counsel in each appropriate jurisdiction for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderssuch affected person)).
(ba) The Borrower Parties, jointly and severally, Borrowers agree to indemnify the Administrative Agent, each the Joint Lead ArrangerArrangers, each Lenderthe Joint Bookrunners, each Issuing Bank, each of their respective Affiliates and Lender, each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns Related Parties (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (excluding the allocated costs of in house counsel and limited to not more than one firm of counsel for all Indemniteessuch Indemnitees that are Senior Creditors, taken as a whole, and one counsel for all such Indemnitees that are Affiliate Lenders, taken as a whole, and, if necessary, one firm of a single local counsel in each appropriate jurisdiction (which may include for all such Indemnitees that are Senior Creditors, taken as a whole and a single special local counsel in multiple jurisdictions) each appropriate jurisdiction for all such Indemnitees that are Affiliate Lenders, taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to interest where the Indemnitee affected by such conflict taken as informs the Borrowers of such conflict and thereafter retains its own counsel, of another firm for such affected Indemnitee (and, if necessary, a wholesingle local counsel in each appropriate jurisdiction for such affected Indemnitee)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower Borrowers or any of their Subsidiaries subsidiaries or AffiliatesAffiliates whether based on contract, tort or any other theory; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (Ax) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
, (dy) Any indemnification arose from a material breach of such Indemnitee’s or payments required any of its Related Parties’ obligations under any Loan Document (as determined by a court of competent jurisdiction in a final, non-appealable judgment) or (z) arose from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrowers or any of their Affiliates and is brought by an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Administrative Agent or a Joint Lead Arranger in its capacity as such). None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to the Borrowers or any Subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Parties Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable within 15 days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(b) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to any Taxes (other than Taxes that represent losses, claims, damages, liabilities and related expenses resulting from a non-Tax claim), which shall be governed exclusively by Section 2.17 and, to the extent set forth therein, Section 2.15.
(ec) To the fullest extent permitted by applicable law, Holdings and the Borrower no Loan Party shall not assert, and hereby waivewaives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fd) The agreements in this Section 9.05 shall survive the resignation of the Administrative AgentAgent or any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly shall reimburse (a) all reasonable and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by of the Administrative Agent, the Collateral Agent and each Arranger (including due diligence expenses, syndication expenses, travel expenses and reasonable fees, charges and disbursements of one firm of counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and one local counsel in any relevant jurisdiction), and, solely in the case of an actual or potential conflict of interest, of one additional counsel (and one additional local counsel in any relevant jurisdiction)) incurred in connection with the preparation of this Agreement and the other Loan DocumentsDocuments or the administration, amendment, modification or waiver thereof and (b) if an Event of Default occurs, all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and each Lender, including the fees and disbursements of one firm of counsel (and one local counsel in any relevant jurisdiction) and, solely in the case of enforcement an actual or potential conflict of this Agreementinterest, the Lendersof one additional counsel (and, if reasonably necessary, one additional local counsel in any relevant jurisdiction) in connection with the preparationsuch Event of Default and collection, execution bankruptcy, insolvency, administration and delivery, amendment, modification, waiver or other enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)proceedings resulting therefrom.
(b) The Borrower Parties, jointly shall indemnify and severally, agree to indemnify the Administrative Agent, each Lead Arranger, hold harmless each Lender, each Issuing Bankthe Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), each of their respective Affiliates Arranger and each of their respective affiliates and their respective officers, directors, officers, employees, agents, advisors, controlling personsand agents (each, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “IndemniteeIndemnified Person”) against, from and to hold each Indemnitee harmless from, against any and all losses, claims, damagesdamages and liabilities (including Environmental Liabilities) and related reasonable and documented out-of-pocket expenses (limited, liabilities in the case of legal counsel, to the reasonable and reasonable, documented and invoiced out-of-pocket fees, charges and disbursements of one firm of (1) primary counsel for all Indemniteesthe Indemnified Persons taken as a whole and, if deemed reasonably necessary by the Indemnified Persons, of one (1) local counsel to the Indemnified Persons taken as a whole in each relevant jurisdiction and, in the event of any actual or potential conflict of interest, one (1) additional counsel for the parties subject to such conflict, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction () to which any such Indemnified Person may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees become subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of (i) connection with the execution or delivery of this Agreement or Agreement, any other Loan DocumentDocuments (including, but not limited to, any notice given or purportedly given by or on behalf of the Borrower) (including, without limitation, the performance by Indemnified Person’s reliance on any Communication executed using an Electronic Signature, or in the parties hereto and thereto form of their respective obligations thereunder or an Electronic Record), the consummation of the Transactions transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its related parties only, the administration of this Agreement and the other transactions contemplated herebyLoan Documents (including in respect of any matters addressed in Section 2.17), (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Term Loans thereunder or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether or not any Indemnitee Indemnified Person is a party thereto and regardless of whether such matter is initiated brought by a third party or by Holdings, the Borrower Parent or any of their Subsidiaries its affiliates (any of the foregoing, a “Proceeding”), and to reimburse each Indemnified Person upon demand for any reasonable and documented legal or Affiliatesother expenses incurred in connection with investigating or defending any of the foregoing; provided that such (i) the foregoing indemnity shall will not, as to any IndemniteeIndemnified Person, be available apply to the extent that such losses, claims, damages, liabilities or related expenses (A) to the extent they are determined found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted arise from (1) the gross negligencebad faith, bad faith or willful misconduct or gross negligence of such Indemnitee Indemnified Person or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or Persons, (B) result to the extent resulting from any proceeding between or among Indemnitees Proceeding that does not involve an act or omission of Parent or any of its Affiliates and that is brought by the Borrower or the other Subsidiaries (an Indemnified Person solely against another Indemnified Person, other than claims against the Administrative Agent Agent, any Arranger or any Lead Arranger other agent in its capacity or in fulfilling its role as an agent or Arranger under the Administrative Agent Loan Documents or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(cC) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that resulting from a material breach by such losses, claims, damages, liabilities Indemnified Person or related expenses are determined any Related Person thereof of its obligations under the Loan Documents as found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct jurisdiction. The provisions of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Obligations, the use by unintended recipients occurrence of the Termination Date, the invalidity or unenforceability of any information term or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on within 15 days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested. A “Related Person” of an Indemnified Person shall mean (a) any controlling person, controlled affiliate or subsidiary of such Indemnified Person, (b) the respective directors, officers or employees of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons and (c) the respective agents and advisors of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent and the Collateral Agent (and and, in the case of enforcement of this Agreement, the LendersAgreement and each Lender) in connection with the syndication of the initial Term Facility, preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement and any of the other Loan Documents (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement(including third party expenses) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not limited in the Transactions hereby contemplated shall be consummated)case of legal fees and expenses, including to the reasonable, reasonable and documented and invoiced fees, charges and disbursements legal fees of a single firm of counsel for the Administrative Agent, the Collateral Agent and the Lead Arrangers (and in the case of enforcement of this AgreementArrangers, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)taken as a whole, and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for the Administrative Agent, the Collateral Agent and the Lead Arrangers, taken as a whole, (and, in the case of any an actual or perceived conflict of interest, one where the party affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for each group of conflicted persons similarly situated, taken as a whole) and in the case of enforcement, limited to, to the reasonable and documented legal fees of a single firm of counsel for the Administrative Agent Agent, the Collateral Agent, Lead Arrangers and the Lenders, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for the Administrative Agent, the Collateral Agent, Lead Arrangers and the Lenders, taken as a whole, (and and, in the case of enforcement an actual or perceived conflict of this Agreementinterest, where the Lendersparty affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for each group of conflicted persons similarly situated, taken as a whole)).
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Collateral Agent, the Lead ArrangerArrangers, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, attorneys-in-fact, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited in the case of one legal fees and expenses to reasonable and documented legal fees of a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated, taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution execution, enforcement or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, hereby and administration and enforcement of the Loan Documents;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Loans;
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; or
(d) any Environmental Liability that is related in any way to the Borrower or any of the Restricted Subsidiaries or to any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any current or former property of the Borrower or any Restricted Subsidiaries; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder or any of its Related Parties under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by other than (A) claims against Administrative Agent, the Borrower Collateral Agent or the other Subsidiaries (other than claims against the Administrative Agent Lead Arrangers or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant feestheir respective Affiliates, in each case, incurred by in their capacity or asserted against in fulfilling their role as the agent or arranger, syndication agent or documentation agent or any Indemnitee other similar role under the initial Term Facility (excluding their role as a Lender) to the extent such Persons are otherwise entitled to receive indemnification under this paragraph (2) or (B) claims arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and act or omission on the part of Holdings, the Borrower or any of the their Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d3) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.06(2) shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, liabilities, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.172.18.
(e4) To the fullest extent permitted by applicable law, Holdings and none of Holdings, the Borrower Borrower, the Administrative Agent, the Collateral Agent. any Lender, any other party hereto or any Indemnitee shall not assert, and each hereby waive, any claim against any Indemniteeother such Person, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No None of Holdings, the Borrower or any Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided that, nothing in this clause (4) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party.
(f5) Notwithstanding the foregoing, each Indemnitee will be obligated to refund and return promptly any and all amounts paid by the Borrower pursuant to clause (2) above to such Indemnitee for any such losses, claims, damages, liabilities and expenses to the extent it has been determined by a court of competent jurisdiction in a final, non-appealable judgment that such Indemnitee is not entitled to payment of such amounts in accordance with the terms of this Section 10.06.
(6) The Borrower will not be liable for any settlement of any claim, litigation, investigation or proceeding effected without its written consent (which consent will not be unreasonably withheld, delayed or conditioned), but if settled with the Borrower’s written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction for the plaintiff against any Indemnitee in any such claim, litigation, investigation or proceeding, you agree to indemnify and hold harmless such Indemnitee in the manner set forth in clause (2) above.
(7) The agreements in this Section 9.05 10.06 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.06 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent Agent, the Arrangers (and and, in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement and the other Loan Documents (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this AgreementAgreement or the other Loan Documents) or in connection with the administration of this Agreement or the other Loan Documents and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, fees and out-of-pocket charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Arrangers, one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders).each
(b2) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the applicable Indemnitees affected by such conflict informs the Borrower of such conflict and has retained, or thereafter retains, its own counsel, of an additional counsel for all each group of affected Indemnitees subject to such conflict similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of: (ia) the execution execution, delivery or delivery administration of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ; (iib) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans; or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based in contract, tort or any other theory, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors (and including any investigation, preparation for, or defense of any pending or threatened claim, litigation, investigation or proceeding); provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it: (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent or any Lead Arranger in its capacity Arrangers or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant feestheir respective Affiliates, in each case, incurred by in their capacity or asserted against in fulfilling their role as the agent or arranger or any Indemnitee arising out of, in any way connected with, or other similar role under the Revolving Facility (excluding their role as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available Lender) to the extent that such losses, claims, damages, liabilities or related expenses Persons are determined by a final, non-appealable judgment of a court of competent jurisdiction otherwise entitled to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any receive indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.Section
Appears in 1 contract
Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementJoixx Xxxx Arxxxxers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “"Indemnitee”") against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall notprovided, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any Property; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
. None of the Indemnitees (dor any of their respective affiliates) Any indemnification shall be responsible or payments required liable to the Fund, Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ed) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Administrative Agent and the Joint Lead Arrangers (and in the case of enforcement of this AgreementArrangers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and (ii) all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead ArrangerArrangers, each Lenderthe Joint-Bookrunners, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements of (limited to not more than one firm of counsel for all Indemniteescounsel, taken as a whole, andplus, if necessary, one firm local counsel per jurisdiction) (except the allocated costs of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto thereto, and regardless of whether such matter any of the foregoing is raised or initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee other Loan Party or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentenceSubsidiary; provided, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the (1) gross negligence, bad faith or willful misconduct of such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective directors, officers, employees, agents or trustees shall be treated as a single Indemnitee) or (2) any material breach of any Loan Document by such Indemnitee. Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Property; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the (1) gross negligence, bad faith or willful misconduct of such Indemnitee or (2) any material breach of any Loan Document by such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective directors, officers, employees, agents or trustees shall be treated as a single Indemnitee). None of the Indemnitees (or any of its Related Parties.
(dtheir respective Affiliates) Any indemnification shall be responsible or payments required liable to Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ed) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Credit Agreement (Noranda Aluminum Acquisition CORP)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this AgreementAgent, the Lenders) Arranger or the Issuing Bank in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement administration of this Amended Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with other Loan Documents, the reasonable prior approval syndication or closing of the Borrower or provided for in this Agreement) or in connection with Revolving Credit Facility, the administration of this Agreement and the Revolving Credit Facility or any amendmentsactual or proposed amendment, modifications modification or waivers waiver of the provisions hereof or thereof (whether and the Borrower agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent, the Arranger, the Issuing Bank or not any Lender in connection with the Transactions hereby contemplated shall be consummated)enforcement or protection of the rights of the Administrative Agent, the Issuing Bank and the Lenders under this Amended Agreement and the other Loan Documents or in connection with the Loans made, the Notes issued hereunder or the Letters of Credit issued hereunder, including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single (i) Winston & Sxxxxx LLP counsel to the Administrative Agent, (ii) any third party consultants retained with the Borrower’s consent, which consent will not be unreasonably withheld, to assist the Administrative Agent in analyzing any environmental, insurance, solvency related and other due diligence issues and (iii) in connection with any such enforcement or protection (including any workout or restructuring or any negotiations relating thereto), any other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders) Issuing Bank or any Lender (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in including the case allocated internal fees and expenses of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lendersin-house staff counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead the Arranger, each Lender, each the Issuing Bank, each the Affiliates of their respective Affiliates the Administrative Agent, the Lenders, and each of their respective directors, officers, employees, agentsagents and Controlling persons (each, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “IndemniteeIndemnified Party”) against, from and to hold each Indemnitee harmless from, against any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction claims (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual whether valid or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholenot), incurred by damages and liabilities, joint or asserted against any Indemnitee several, to which such Indemnified Party may become subject, related to or arising out of, in any way connected with, or as a result of (i) the Revolving Credit Facility, (ii) the execution or delivery of the Original Credit Agreement, the Existing Credit Agreement, this Amended Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and or thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated herebyhereby and thereby, (iiiii) any Loan or Letter the use of the Letters of Credit or the use proceeds of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans or (iiiiv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee Indemnified Party is a party thereto thereto. The Borrower further agrees to reimburse each Indemnified Party for all expenses (including reasonable attorneys’ fees and regardless expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(b) shall not apply in respect of any loss, claim, damage or liability to the extent that a court of competent jurisdiction shall have determined by final and nonappealable judgment that such loss, claim, damage or liability resulted from such Indemnified Party’s gross negligence or willful misconduct.
(c) The Borrower agrees to indemnify the Administrative Agent, the Arranger, the Issuing Bank, the Lenders and the other Indemnified Parties from and against any and all losses, claims (whether valid or not), damages and liabilities, joint or several, to which such matter is initiated Indemnified Party may become subject, related to or arising out of (i) any Federal, state, local or other statute, ordinance, order, judgment, ruling or regulation relating to environmental pollution, regulation or control affecting the Borrower, any Subsidiary or its properties or assets, (ii) any Hazardous Materials managed by a third party or by Holdings, the Borrower or any of their Subsidiaries Subsidiary, (iii) any event, condition or Affiliates; provided that such indemnity shall notcircumstance involving environmental protection, as pollution, regulation or control affecting the Borrower or any Subsidiary or its properties or assets or (iv) any claim, litigation, investigation or proceeding relating to any Indemniteeof the foregoing, be available whether or not any Indemnified Party is a party thereto. The Borrower further agrees to reimburse each Indemnified Party for all expenses (including reasonable consultants’ and attorneys’ fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(c) shall not apply in respect of any loss, claim, damage or liability to the extent that a court of competent jurisdiction shall have determined by final and nonappealable judgment that such loss, claim, damage or liability resulted from such Indemnified Party’s gross negligence or willful misconduct.
(d) In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Borrower will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s losses, claims, damages or liabilities in such proportions as appropriately reflect the relative benefits received by and fault of the Borrower and such Indemnified Party in connection with the matters as to which such losses, claims, damagesdamages or liabilities relate and other equitable considerations.
(e) If any action, liabilities proceeding or related investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Borrower with reasonable promptness; provided, that, any failure by such Indemnified Party to notify the Borrower shall not relieve the Borrower from its obligations hereunder except to the extent the Borrower is prejudiced thereby. The Borrower shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. Each Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Party, unless (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1i) the gross negligenceBorrower has failed to assume the defense and employ counsel as provided herein, bad faith or willful misconduct (ii) the Borrower has agreed in writing to pay such fees and expenses of such Indemnitee or any of its Related Parties separate counsel or (2iii) a material breach an action, proceeding or investigation has been commenced against such Indemnified Party and the Borrower and representation of both the obligations of Borrower and such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission Indemnified Party by the Borrower same counsel would be inappropriate because of actual or potential conflicts of interest between the other Subsidiaries parties (other than claims against in the case of the Administrative Agent or any Lead Arranger Lender, the existence of any such actual or potential conflict of interest to be determined by such party, taking into account, among other things, any relevant regulatory concerns). In the case of any circumstance described in its capacity clause (i), (ii), or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(ciii) Subject to and without limiting the generality of the foregoing immediately preceding sentence, the Borrower Parties, jointly shall be responsible for the reasonable fees and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable lawseparate counsel; provided, Holdings and that, the Borrower shall not assertin any event be required to pay the fees and expenses of more than one separate counsel (plus appropriate local counsel under the direction of such separate counsel) for all Indemnified Parties, unless representation of all Indemnified Parties by the same counsel would be inappropriate due to actual or potential conflicting interests between such Indemnified Parties, in which case, the Borrower shall be required to pay the fees and hereby waive, expenses of such additional counsel as are necessary to prevent such conflicting interests. The Borrower shall be liable only for settlement of any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, an Indemnified Party made with the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or therebyBorrower’s written consent.
(f) The agreements in provisions of this Section 9.05 shall survive remain operative and in full force and effect regardless of the resignation expiration of the term of this Amended Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the invalidity or unenforceability of any term or provision of this Amended Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedtherefor.
Appears in 1 contract
Expenses; Indemnity. The Borrower will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration delivery of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonableincluding, documented without limitation, all reasonable out-of-pocket syndication and invoiced fees, charges due diligence expenses and reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including, without limitation, reasonable fees and disbursements of counsel for the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply the administration and enforcement of any rights and remedies of the Administrative Agent and Lenders under the Credit Facility, including, without limitation, in connection with the terms any workout, restructuring, bankruptcy or other similar proceeding, creating and perfecting Liens in favor of such Letter Administrative Agent on behalf of Credit) or (iii) any claim, litigation, investigation or proceeding relating Lenders pursuant to any of the foregoingSecurity Document, whether enforcing any Obligations of, or not collecting any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingspayments due from, the Borrower or any Subsidiary Guarantor by reason of their Subsidiaries an Event of Default (including in connection with the sale of, collection from, or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or other realization upon any of its Related Parties the Collateral or (2) a material breach the enforcement of the obligations Guaranty Agreement; consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the nature, scope or value of such Indemnitee hereunder any right or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against remedy of the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in its capacity connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, trustees, officers and directors, from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in connection with any claim (including, without limitation, any Environmental Claims), investigation, litigation or in fulfilling its role as other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholeparty thereto) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of any claim related to Environmental Laws and with the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofLoans, this Agreement, any other Loan Document Document, or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred to herein or therein or the transactions contemplated hereby or thereby, including, without limitation, reasonable attorney's and consultant's fees, except to the extent that any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising foregoing directly result from the use by unintended recipients of any information gross negligence or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation willful misconduct of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, party seeking indemnification or other amount requestedtherefor.
Appears in 1 contract
Expenses; Indemnity. (a1) The If the Transactions are consummated and the Closing Date occurs, the Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx White & Xxxxxxxx Case LLP), one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and Agent, the Lead Arrangers (and and, in the case of enforcement of this Agreement, the Lenders).
(b2) The Borrower Parties, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all group of affected Indemnitees subject to such conflict similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of of:
(ia) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, ;
(iib) any Loan or Letter of Credit or the use of the proceeds thereof of the Loans; or
(including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iiic) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Restricted Subsidiaries or AffiliatesAffiliates or creditors; provided that such indemnity shall notno Indemnitee will be indemnified for any loss, as to any Indemniteeclaim, be available damage, liability, cost or expense to the extent that such losses, claims, damages, liabilities or related expenses it: (Ai) are has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1A) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2B) a material breach of the obligations of such Indemnitee hereunder under the Loan Documents or (Bii) result from relates to any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than (A) claims against the Administrative Agent or any Lead Arranger Arrangers or their respective Affiliates, in its each case, in their capacity or in fulfilling its their role as the Administrative Agent agent or a Lead Arranger arranger or any other similar role hereunder under the Revolving Facility (excluding its their role as a Lender))) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of Holdings, the Borrower or their Restricted Subsidiaries.
(c3) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related in any way to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged would reasonably be expected to be, be held liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than (x) any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim and (y) expenses related to the enforcement of Section 2.17 or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Letter of Credit, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)
Expenses; Indemnity. (a) The Borrower Partiesand Holdings agree, jointly and severally, agree to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses (including but not limited to expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) incurred by the Administrative Agent Agent, the Collateral Agent, the Swingline Lender and the Lead Arrangers Issuing Bank in connection with the preparation syndication of the credit facilities provided for herein and the preparation, execution and delivery, and administration of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreementincluding any Inventory Appraisal, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications modifications, enforcement costs, work-out costs, documentary taxes or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby or thereby contemplated shall be consummated)) or incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the work-out enforcement or protection of its rights in connection with this Agreement (including pursuant to Section 9.02 of this Agreement) and the other Loan Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the reasonable, documented and invoiced fees, charges and disbursements of a single Xxxxxx & Xxxxxxx, counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementCollateral Agent, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in connection with any such enforcement or protection, or work-out, the case fees, charges and disbursements of any actual or perceived conflict of interest, one additional firm of other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders)Collateral Agent or any Lender.
(b) The Borrower PartiesLoan Parties agree, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arrangerthe Collateral Agent, each Lender, each the Issuing BankBank and the Swingline Lender, each Affiliate of their respective Affiliates any of the foregoing Persons and each of their respective directors, officers, employeestrustees, agents, advisors, controlling persons, equityholders, partners, members employees and other representatives and each of their respective successors and permitted assigns agents (each such person Person being called an “Indemnitee”"INDEMNITEE") against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges charges, expenses and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole)disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated herebyTransactions, (ii) any Loan actual or Letter of Credit or the proposed use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms Loans or issuance of such Letter Letters of Credit) or , (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdingsthereto, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2iii) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, presence or Release or threatened Release of Hazardous Materials atMaterials, underon, on under or from any property for which the Borrower Property owned, leased or operated by any Company, or any of its Restricted Subsidiaries isEnvironmental Claim related in any way to any Company; provided, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith negligence or willful misconduct of such Indemnitee or any of its Related PartiesIndemnitee.
(dc) Any indemnification or payments required by the Loan Parties under The provisions of this Section 9.05 11.03 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Loans, the use by unintended recipients expiration of the Commitments, the expiration of any information Letter of Credit, the invalidity or other materials distributed by it through telecommunications, electronic unenforceability of any term or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Collateral Agent, the Issuing Bank or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 11.03 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(d) To the extent that Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section 11.03, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender's pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any of the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro rata share" shall be determined based upon its share of the sum of the total Revolving Exposure and unused Commitments at the time.
Appears in 1 contract
Expenses; Indemnity. The Borrower and each other Credit Party will (a) The Borrower Parties, jointly and severally, agree to pay all reasonable, reasonable and documented and invoiced out-of-pocket expenses incurred by (including, without limitation, all costs of electronic or internet distribution of any information hereunder) of the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lendersi) in connection with the preparation, execution execution, delivery and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendmentseach other Loan Document, modifications or waivers of whenever the provisions hereof or thereof (whether or not the Transactions hereby contemplated same shall be consummated)executed and delivered, including the reasonableincluding, without limitation, all reasonable and documented out-of-pocket syndication and invoiced due diligence expenses and reasonable and documented out-of-pocket fees, disbursements and other charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and (ii) the Lead Arrangers (preparation, execution and in the case delivery of enforcement of this Agreementany waiver, the Lenders).
(b) The Borrower Parties, jointly and severally, agree to indemnify amendment or consent by the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and Agent or the Lenders relating to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, including, without limitation, reasonable and documented out-of-pocket fees and disbursements of counsel for the performance by the parties hereto Administrative Agent, (b) pay all reasonable and thereto of their respective obligations thereunder or the consummation documented out-of-pocket expenses of the Transactions Administrative Agent and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented each Lender actually incurred in connection with such demand do not strictly comply with the terms enforcement of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any rights and remedies of the foregoingAdministrative Agent and Lenders under the Credit Facilities, whether including, without limitation, in connection with any workout, restructuring, bankruptcy or not other similar proceeding, enforcing any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party Obligations of, or by Holdingscollecting any payments due from, the Borrower or any Guarantor by reason of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to an Event of Default (including in connection with the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach enforcement of the obligations Guaranty Agreement); consulting with appraisers, accountants, engineers, attorneys and other Persons concerning the nature, scope or value of such Indemnitee hereunder any right or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against remedy of the Administrative Agent or any Lead Arranger Lender hereunder or under any other Loan Document or any factual matters in connection therewith, which expenses shall include without limitation the reasonable fees and disbursements of such Persons, and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors (including any Affiliate in its capacity as an arranger or bookrunner hereunder), from and against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses, suffered by any such Person in fulfilling its role as connection with any claim (including, without limitation, any Environmental Claims or civil penalties or fines assessed by OFAC), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholeparty thereto) and reasonablethe prosecution and defense thereof, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result with any Extension of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result ofCredit, this Agreement, any other Loan Document Document, or any agreement documents, reports or instrument other information provided to the Administrative Agent or any Lender or contemplated hereby, by or referred to herein or therein or the transactions contemplated hereby or thereby, or any Commitment, action taken or omitted to be taken by the Administrative Agent under or in connection with any Loan or the use of the proceeds thereofforegoing including, without limitation, reasonable attorney’s and consultant’s fees, except to the extent that any of the foregoing are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the party seeking indemnification therefor. No Indemnitee This Section 13.3 shall be liable for not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or therebynon-Tax claim.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Credit Agreement (Blackbaud Inc)
Expenses; Indemnity. (a) The Borrower Parties, jointly shall reimburse (a) all reasonable and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by of the Administrative Agent, the Collateral Agent and the Lead Arrangers Arranger (including due diligence expenses, syndication expenses, travel expenses and reasonable fees, charges and disbursements of one firm of counsel for the Administrative Agent, the Collateral Agent and the Arranger (and one local counsel in any relevant jurisdiction), and, solely in the case of an actual or potential conflict of interest, of one additional counsel (and one additional local counsel in any relevant jurisdiction)) incurred in connection with the preparation of this Agreement and the other Loan DocumentsDocuments or the administration, amendment, modification or waiver thereof and (b) if an Event of Default occurs, all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent and each Lender, including the fees and disbursements of one firm of counsel (and one local counsel in any relevant jurisdiction) and, solely in the case of enforcement an actual or potential conflict of this Agreementinterest, the Lendersof one additional counsel (and, if reasonably necessary, one additional local counsel in any relevant jurisdiction) in connection with the preparationsuch Event of Default and collection, execution bankruptcy, insolvency, administration and delivery, amendment, modification, waiver or other enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders)proceedings resulting therefrom.
(b) The Borrower Parties, jointly shall indemnify and severally, agree to indemnify the Administrative Agent, each Lead Arranger, hold harmless each Lender, each Issuing Bankthe Administrative Agent (and any sub-agent thereof), each of their respective Affiliates the Collateral Agent (and any sub-agent thereof), the Arranger and each of their respective affiliates and their respective officers, directors, officers, employees, agents, advisors, controlling personsand agents (each, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person being called an “IndemniteeIndemnified Person”) against, from and to hold each Indemnitee harmless from, against any and all losses, claims, damagesdamages and liabilities (including Environmental Liabilities) and related reasonable and documented out-of-pocket expenses (limited, liabilities in the case of legal counsel, to the reasonable and reasonable, documented and invoiced out-of-pocket fees, charges and disbursements of one firm of (1) primary counsel for all Indemniteesthe Indemnified Persons taken as a whole and, if deemed reasonably necessary by the Indemnified Persons, of one (1) local counsel to the Indemnified Persons taken as a whole in each relevant jurisdiction and, in the event of any actual or potential conflict of interest, one (1) additional counsel for the parties subject to such conflict, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction () to which any such Indemnified Person may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees become subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, of or in any way connected with, or as a result of (i) connection with the execution or delivery of this Agreement or Agreement, any other Loan DocumentDocuments (including, but not limited to, any notice given or purportedly given by or on behalf of the Borrower) (including, without limitation, the performance by Indemnified Person’s reliance on any Communication executed using an Electronic Signature, or in the parties hereto and thereto form of their respective obligations thereunder or an Electronic Record), the consummation of the Transactions transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its related parties only, the administration of this Agreement and the other transactions contemplated herebyLoan Documents (including in respect of any matters addressed in Section 2.17), (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Term Loans thereunder or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether or not any Indemnitee Indemnified Person is a party thereto and regardless of whether such matter is initiated brought by a third party or by Holdings, the Borrower Parent or any of their Subsidiaries its affiliates (any of the foregoing, a “Proceeding”), and to reimburse each Indemnified Person upon demand for any reasonable and documented legal or Affiliatesother expenses incurred in connection with investigating or defending any of the foregoing; provided that such (i) the foregoing indemnity shall will not, as to any IndemniteeIndemnified Person, be available apply to the extent that such losses, claims, damages, liabilities or related expenses (A) to the extent they are determined found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted arise from (1) the gross negligencebad faith, bad faith or willful misconduct or gross negligence of such Indemnitee Indemnified Person or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or Persons, (B) result to the extent resulting from any proceeding between or among Indemnitees Proceeding that does not involve an act or omission of Parent or any of its Affiliates and that is brought by the Borrower or the other Subsidiaries (an Indemnified Person solely against another Indemnified Person, other than claims against the Administrative Agent Agent, the Arranger or any Lead Arranger other agent in its capacity or in fulfilling its role as an agent or Arranger under the Administrative Agent Loan Documents or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(cC) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that resulting from a material breach by such losses, claims, damages, liabilities Indemnified Person or related expenses are determined any Related Person thereof of its obligations under the Loan Documents as found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct jurisdiction. The provisions of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative remain operative and in full force and effect regardless of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To expiration of the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory term of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument the consummation of the transactions contemplated hereby, the transactions contemplated hereby or thereby, repayment of any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from Obligations, the use by unintended recipients occurrence of the Termination Date, the invalidity or unenforceability of any information term or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with provision of this Agreement or the any other Loan Documents Document, or the transactions contemplated hereby any investigation made by or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on within 15 days after written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested. A “Related Person” of an Indemnified Person shall mean (a) any controlling person, controlled affiliate or subsidiary of such Indemnified Person, (b) the respective directors, officers or employees of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons and (c) the respective agents and advisors of such Indemnified Person or any of its subsidiaries, controlled affiliates or controlling persons.
Appears in 1 contract
Samples: Delayed Draw Bridge Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by the Administrative Agent and Agent, BOCM or the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) Issuing Bank in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement administration of this Amended Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with other Loan Documents, the reasonable prior approval syndication or closing of the Borrower or provided for in this Agreement) or in connection with Revolving Credit Facility, the administration of this Agreement and the Revolving Credit Facility or any amendmentsactual or proposed amendment, modifications modification or waivers waiver of the provisions hereof or thereof (whether and the Borrower agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent, BOCM, the Issuing Bank or not any Lender in connection with the Transactions hereby contemplated shall be consummated)enforcement or protection of the rights of the Administrative Agent, the Issuing Bank and the Lenders under this Amended Agreement and the other Loan Documents or in connection with the Loans made, the Notes issued hereunder or the Letters of Credit issued hereunder, including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single (i) Winston & Xxxxxx LLP counsel to the Administrative Agent, (ii) any third party consultants retained with the Borrower's consent, which consent will not be unreasonably withheld, to assist the Administrative Agent in analyzing any environmental, insurance, solvency related and other due diligence issues and (iii) in connection with any such enforcement or protection (including any workout or restructuring or any negotiations relating thereto), any other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders) Issuing Bank or any Lender (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in including the case allocated internal fees and expenses of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lendersin-house staff counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead ArrangerBOCM, each Lender, each the Issuing Bank, each the Affiliates of their respective Affiliates the Administrative Agent, the Lenders, and each of their respective directors, officers, employees, agentsagents and Controlling persons (each, advisors, controlling persons, equityholders, partners, members an "Indemnified Party") from and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, against any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction claims (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual whether valid or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholenot), incurred by damages and liabilities, joint or asserted against any Indemnitee several, to which such Indemnified Party may become subject, related to or arising out of, in any way connected with, or as a result of (i) the Revolving Credit Facility, (ii) the execution or delivery of the Original Credit Agreement, the Existing Credit Agreement, this Amended Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and or thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated herebyhereby and thereby, (iiiii) any Loan or Letter the use of the Letters of Credit or the use proceeds of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans or (iiiiv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee Indemnified Party is a party thereto thereto. The Borrower further agrees to reimburse each Indemnified Party for all expenses (including reasonable attorneys' fees and regardless expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(b) shall not apply in respect of any loss, claim, damage or liability to the extent that a court of competent jurisdiction shall have determined by final and nonappealable judgment that such loss, claim, damage or liability resulted from such Indemnified Party's gross negligence or willful misconduct.
(c) The Borrower agrees to indemnify the Administrative Agent, BOCM, the Issuing Bank, the Lenders and the other Indemnified Parties from and against any and all losses, claims (whether valid or not), damages and liabilities, joint or several, to which such matter is initiated Indemnified Party may become subject, related to or arising out of (i) any Federal, state, local or other statute, ordinance, order, judgment, ruling or regulation relating to environmental pollution, regulation or control affecting the Borrower, any Subsidiary or its properties or assets, (ii) any Hazardous Materials managed by a third party or by Holdings, the Borrower or any of their Subsidiaries Subsidiary, (iii) any event, condition or Affiliates; provided that such indemnity shall notcircumstance involving environmental protection, as pollution, regulation or control affecting the Borrower or any Subsidiary or its properties or assets or (iv) any claim, litigation, investigation or proceeding relating to any Indemniteeof the foregoing, be available whether or not any Indemnified Party is a party thereto. The Borrower further agrees to reimburse each Indemnified Party for all expenses (including reasonable consultants' and attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(c) shall not apply in respect of any loss, claim, damage or liability to the extent that a court of competent jurisdiction shall have determined by final and nonappealable judgment that such loss, claim, damage or liability resulted from such Indemnified Party's gross negligence or willful misconduct.
(d) In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Borrower will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party's losses, claims, damages or liabilities in such proportions as appropriately reflect the relative benefits received by and fault of the Borrower and such Indemnified Party in connection with the matters as to which such losses, claims, damagesdamages or liabilities relate and other equitable considerations.
(e) If any action, liabilities proceeding or related investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Borrower with reasonable promptness; provided, that, any failure by such Indemnified Party to notify the Borrower shall not relieve the Borrower from its obligations hereunder except to the extent the Borrower is prejudiced thereby. The Borrower shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. Each Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Party, unless (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1i) the gross negligenceBorrower has failed to assume the defense and employ counsel as provided herein, bad faith or willful misconduct (ii) the Borrower has agreed in writing to pay such fees and expenses of such Indemnitee or any of its Related Parties separate counsel or (2iii) a material breach an action, proceeding or investigation has been commenced against such Indemnified Party and the Borrower and representation of both the obligations of Borrower and such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission Indemnified Party by the Borrower same counsel would be inappropriate because of actual or potential conflicts of interest between the other Subsidiaries parties (other than claims against in the case of the Administrative Agent or any Lead Arranger Lender, the existence of any such actual or potential conflict of interest to be determined by such party, taking into account, among other things, any relevant regulatory concerns). In the case of any circumstance described in its capacity clause (i), (ii), or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(ciii) Subject to and without limiting the generality of the foregoing immediately preceding sentence, the Borrower Parties, jointly shall be responsible for the reasonable fees and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable lawseparate counsel; provided, Holdings and that, the Borrower shall not assertin any event be required to pay the fees and expenses of more than one separate counsel (plus appropriate local counsel under the direction of such separate counsel) for all Indemnified Parties, unless representation of all Indemnified Parties by the same counsel would be inappropriate due to actual or potential conflicting interests between such Indemnified Parties, in which case, the Borrower shall be required to pay the fees and hereby waive, expenses of such additional counsel as are necessary to prevent such conflicting interests. The Borrower shall be liable only for settlement of any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, an Indemnified Party made with the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or therebyBorrower's written consent.
(f) The agreements in provisions of this Section 9.05 shall survive remain operative and in full force and effect regardless of the resignation expiration of the term of this Amended Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the invalidity or unenforceability of any term or provision of this Amended Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedtherefor.
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree Each Loan Party agrees to pay (i) all reasonable, reasonable and documented and invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence diligence), and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower and the reasonable fees, disbursements and charges for no more than one counsel in each jurisdiction where Collateral is located) or provided for in this Agreement) connection with the opening and maintaining of a Dominion Account or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonablereasonable and documented fees, out-of-pocket charges and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Administrative Agent, and Otterbourg P.C., solely in its capacity as special intercreditor counsel for the Administrative Agent, and, if necessary, the reasonable and documented fees, out-of-pocket charges and invoiced disbursements of one local counsel per jurisdiction, and (ii) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the fees, charges and disbursements of a single counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderscounsel).
(b) The Borrower Parties, jointly and severally, agree Each Loan Party agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, including reasonable and documented and invoiced fees, out-of-pocket charges and disbursements of one firm counsel (except the allocated costs of counsel in-house counsel) for all Indemnitees, taken as a whole, and, if necessary, such Indemnitees (plus one firm of local counsel in each appropriate applicable jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case event of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject appointed with the consent of the Borrower, such consent not to such conflict taken as a wholebe unreasonably withheld or delayed), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) , or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower Borrower, or any other First Tier Covenant Party or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the bad faith, gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, each Loan Party agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel or consultant fees, out-of-pocket charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any Environmental Laws and related in any way to Holdings, the Borrower, or any other First Tier Covenant Party or any of their respective Subsidiariessubsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any property related in any way to Holdings, the Borrower, or any other First Tier Covenant Party or any of their respective Subsidiariessubsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available (i) to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith faith, gross negligence or willful misconduct of such Indemnitee or any of its Related Parties, (ii) to the extent arising from a material breach of any such Indemnitee’s obligations under the Loan Documents, as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (iii) to the extent arising out of any claim, litigation, investigation or proceeding that does not involve an act or omission of the Loan Parties or any of their affiliates and that is brought by an Indemnitee against any other Indemnitee (other than claims against an Indemnitee in its capacity or in fulfilling its role as Administrative Agent or Joint Lead Arranger or any similar role under the Loan Documents). None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to Holdings, the Borrower, or any other First Tier Covenant Party or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of any Revolving Facility or the Transactions. The provisions of this Section 10.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 10.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17, this Section 10.05 shall not apply to any Taxes (other than Taxes that represent losses, claims, damages, liabilities and related expenses resulting from a non-Tax claim).
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings Holdings, the Borrower, or any other First Tier Covenant Party and the Borrower their respective subsidiaries shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Verso Corp)
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay (i) all reasonable, documented and invoiced out-of-reasonable out of pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Administrative Agent and the Joint Lead Arrangers (and in the case of enforcement of this Agreementand, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and (ii) all out of pocket expenses (including Other Taxes) incurred by the Administrative Agent, any Joint Lead Arranger or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless Table of Contents from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholein-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall notprovided, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-non appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Holdings, the Borrower or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any Property; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
. None of the Indemnitees (dor any of their respective affiliates) Any indemnification shall be responsible or payments required liable to the Fund, Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17., this Section 9.05 shall not apply to Taxes other than Taxes that represent losses, claims, damages, liabilities and expenses with respect to a non-Tax claim. Table of Contents
(ed) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Parent and the Borrower Partiesagree, jointly and severally, agree to pay promptly (a) all reasonable, the reasonable and documented and invoiced out-of-pocket costs and expenses of the Agents incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation negotiation, preparation, execution, delivery and administration of this Agreement the Loan Documents and any consents, amendments, waivers or other modifications thereto, (b) all the other costs of furnishing all opinions by counsel for the Loan DocumentsParties (and, or by if applicable, counsel to the Administrative Agent Agents), (c) the reasonable and in documented fees, expenses and disbursements of one firm of counsel to the case of enforcement of this Agreement, the Lenders) Agents in connection with the negotiation, preparation, execution execution, delivery and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval administration of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement Loan Documents and any consents, amendments, waivers or other modifications thereto and any other documents or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)matters requested by Borrower and, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and one special counsel for the Agents (and, in the case of any an actual or perceived conflict of interest, where the Person or Persons affected by such conflict inform the Borrower of such conflict and thereafter retains its own counsel, one additional firm of counsel (and, if necessary, one additional firm of local counsel and special counsel) for each such affected person), (d) all the actual costs and reasonable expenses of creating, perfecting, recording, maintaining and preserving Liens in favor of the Collateral Agent, for the benefit of the Secured Parties, including filing and recording fees, expenses, search fees, title insurance premiums and reasonable and documented fees, expenses and disbursements of one firm of counsel to the Agents and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and one special counsel for the Agents (and, in the case of an actual or perceived conflict of interest, one additional firm of counsel (and, if necessary, one additional firm of local counsel and special counsel) for each such affected person), and the Administrative reasonable and documented fees, expenses and disbursements of counsel providing any opinions that any Agent or the Required Lenders may request in respect of the Collateral or the Liens created pursuant to the Security Documents, (e) all the reasonable and documented out-of-pocket fees, expenses and disbursements of any auditors, accountants, experts, consultants, appraisers and other professional advisors, (f) all the reasonable and documented out-of-pocket costs and reasonable expenses (including the actual and reasonable fees, expenses and disbursements of any appraisers, experts, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral, (g) all other reasonable and documented out-of-pocket costs and expenses incurred by each Agent in connection with the syndication of the Loans and Commitments and the transactions contemplated by the Loan Documents and any consents, amendments, waivers or other modifications thereto, and (h) after the occurrence of an Event of Default, all reasonable and documented out-of-pocket costs and expenses, including reasonable attorneys’ fees and costs of settlement, incurred by any Agent and the Lead Arrangers Lenders in enforcing any Obligations of or in collecting any payments due from any Loan Party hereunder or under the other Loan Documents by reason of such Event of Default (and including in connection with the sale, lease or license of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the case nature of enforcement of this Agreement, the Lenders)a “work-out” or pursuant to any insolvency or bankruptcy cases or proceedings.
(b) The Borrower PartiesIn addition to the payment of expenses pursuant to Section 10.05(a), whether or not the transactions contemplated hereby shall be consummated, the Loan Parties agree, jointly and severally, agree to indemnify the Administrative each Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates Lender and each Related Party of their respective directors, officers, employees, agents, advisors, controlling persons, equityholders, partners, members and other representatives and each any of their respective successors and permitted assigns the foregoing Persons (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or AffiliatesIndemnified Liabilities; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (Ai) are determined by a final, non-appealable judgment of a court of competent jurisdiction by final and nonappealable judgment to have resulted from (1) the bad faith, gross negligence, bad faith negligence or willful misconduct of such Indemnitee or any of its Related Parties controlled Affiliates or controlling Persons or any of the officers, directors, employees or members of any of the foregoing, in each case who are involved in or aware of the Transactions, or (2ii) a material breach of the obligations of such Indemnitee hereunder or (B) result arise from any proceeding between or disputes solely among Indemnitees (other than any Indemnitee acting in its capacity as an Agent or similar role) that does do not involve an act or omission by any of the Borrower or the other Subsidiaries (other than claims against the Administrative Agent Loan Parties or any Lead Arranger of their respective Affiliates. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in its capacity this Section 10.05 may be unenforceable in whole or in fulfilling its role as part because they are violative of any law or public policy, the Administrative Agent or a Lead Arranger applicable Loan Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any similar role hereunder (excluding its role as a Lender))of them.
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to To the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not fail to pay any amount required to be duplicative of any indemnification or payments required paid by them to the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan Administrative Agent or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Collateral Agent, the replacement of any Lenderunder Sections 10.05(a) and 10.05(b), the termination of the Commitments and the repaymentwithin thirty days after demand therefor, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect each Lender severally agrees to any reimbursement, indemnification or other amount requested.pay to the
Appears in 1 contract
Expenses; Indemnity. (a) xlviii. The Borrower Parties, jointly and severally, Borrowers agree to pay 1. all reasonable, documented and invoiced reasonable out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided Borrowers and the reasonable fees, disbursements and charges for no more than one counsel in this Agreementeach jurisdiction where Collateral is located) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementArrangers, and, if necessary, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)reasonable fees, charges and disbursements of one firm of local counsel per jurisdiction, and 2. all out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in each appropriate jurisdiction andconnection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the case Loans made or the Letters of any actual or perceived conflict of interestCredit issued hereunder, one additional firm including the fees, charges and disbursements of counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderslocal counsel).
(ba) The Borrower Parties, jointly and severally, Borrowers agree to indemnify the Administrative Agent, each Lead Arrangerthe Agents, each Lenderthe Arrangers, the Joint Bookrunners, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, documented and invoiced including reasonable counsel fees, charges and disbursements (except the allocated costs of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholehouse counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) 3. the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or 4. the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) 5. any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower Borrowers or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall notprovided, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, bad faith each of the Administrative Agent, any Arranger, any Joint Bookrunner, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, the Borrowers agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim, cost or liability related in any way to Environmental Laws and Holdings, the Borrowers or any of their Subsidiaries or their respective predecessors, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any property currently or formerly owned, operated or leased by the Borrowers or any of their Subsidiaries or their respective predecessors, or any other location where wastes generated by the Borrowers or any of their Subsidiaries or their respective predecessors were disposed; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties.
. None of the Indemnitees (dor any of their respective affiliates) Any indemnification shall be responsible or payments required liable to the Fund, Holdings, the Borrowers or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Facilities or the Transactions. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Loan Parties Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(b) Except as expressly provided in Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of with any indemnification or payments required by the Loan Parties under amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes.
(ec) To the fullest extent permitted by applicable law, Holdings and the Borrower Borrowers shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fd) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Expenses; Indemnity. (a1) The Each Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agents, the Documentation Agent and the Lead Arrangers Syndication Agent in connection with the syndication of the Revolving Facility, preparation of this Agreement and the other Loan Documents, or by the Administrative Agent Agents (and in the case of enforcement of this AgreementAgreement and the other Loan Documents, each Lender, Issuing Bank and the LendersSwingline Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence (including third party expenses) and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower Borrowers or as provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single internal counsel for the Administrative Agents and a single external counsel for the Agents, the Documentation Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP)Syndication Agent, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, where the indemnified person affected by such conflict informs Holdings of such conflict, one additional firm of counsel for the Administrative Agents, the Documentation Agent and the Lead Arrangers (and Syndication Agent and, in the case of enforcement of this Agreement, each Lender, Issuing Bank and the LendersSwingline Lender (in the aggregate).
(b2) The Each Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead the Arranger, the Documentation Agent, the Syndication Agent, each Lender, each Issuing Bank, the Swingline Lender, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced out-of-pocket fees and expenses (limited to reasonable and documented legal fees of internal counsel for the Agents and a single counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs Holdings of such conflict and thereafter retains its own counsel, of an additional counsel for each group of affected Indemnitees similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:
(a) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby;
(b) the use of the proceeds of the Loans;
(c) any claim, litigation, investigation or proceeding relating to the Transactions or any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by Holdings, any Borrower or any of the Subsidiaries or Affiliates or creditors or any other Person; or
(d) any action taken in connection with this Agreement, including, but not limited to, the payment of principal, interest and fees. provided that no Indemnitee will be indemnified for any loss, claim, damage, liability, cost or expense to the extent it: (i) has been determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (y) a material breach of the obligations of such Indemnitee or any of its Related Parties under the Loan Documents or (ii) relates to any proceeding between or among Indemnitees other than (A) claims against Agents, Arranger, Documentation Agent, Syndication Agent or their respective Affiliates, in each case, in their capacity or in fulfilling their role as the agent or agent, arranger, documentation agent, syndication agent, senior managing agent or any other similar role under the Revolving Facility (excluding their role as a Lender) to the extent such Persons are otherwise entitled to receive indemnification under this Section 10.05(2) or (B) claims arising out of any act or omission on the part of any Loan Party or their Subsidiaries.
(3) Subject to and without limiting the generality of the foregoing sentence, each Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one U.S. and one Canadian firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to in any way to, Environmental Laws and the Holdings, any Borrower or any of the Restricted SubsidiariesSubsidiary, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Holdings, any Borrower or any of its Restricted Subsidiaries is, or is alleged Subsidiary would reasonably be expected to be, be liable under Environmental Laws, regardless of whether such matter is initiated by Holdings, any Borrower or any Subsidiary or Affiliates or creditors or any other Person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d4) Any indemnification or payments required by the Loan Parties under this Section 9.05 10.05 shall not be apply with respect to (a) Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim or (b) Taxes that are duplicative of any indemnification or payments required by the Loan Parties under Section 2.17 or which would be so duplicative but for any of the exemptions set out in Section 2.17.
(e5) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby[Reserved].
(f6) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree agrees to pay all reasonable, documented and invoiced reasonable out-of-pocket expenses incurred by the Administrative Agent and Agent, BOCM or the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) Issuing Bank in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement administration of this Amended Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with other Loan Documents, the reasonable prior approval syndication or closing of the Borrower or provided for in this Agreement) or in connection with Revolving Credit Facility, the administration of this Agreement and the Revolving Credit Facility or any amendmentsactual or proposed amendment, modifications modification or waivers waiver of the provisions hereof or thereof (whether and the Borrower agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent, BOCM, the Issuing Bank or not any Lender in connection with the Transactions hereby contemplated shall be consummated)enforcement or protection of the rights of the Administrative Agent, the Issuing Bank and the Lenders under this Amended Agreement and the other Loan Documents or in connection with the Loans made, the Notes issued hereunder or the Letters of Credit issued hereunder, including the reasonable, documented and invoiced reasonable fees, charges and disbursements of a single (i) Winston & Strawn counsel to the Administrative Agent, (ii) any third paxxx xxnsultants retained with the Borrower's consent, which consent will not be unreasonably withheld, to assist the Administrative Agent in analyzing any environmental, insurance, solvency related and other due diligence issues and (iii) in connection with any such enforcement or protection (including any workout or restructuring or any negotiations relating thereto), any other counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this AgreementAgent, the Lenders) Issuing Bank or any Lender (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in including the case allocated internal fees and expenses of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lendersin-house staff counsel).
(b) The Borrower Parties, jointly and severally, agree agrees to indemnify the Administrative Agent, each Lead ArrangerBOCM, each Lender, each the Issuing Bank, each the Affiliates of their respective Affiliates the Administrative Agent, the Lenders, and each of their respective directors, officers, employees, agentsagents and Controlling persons (each, advisors, controlling persons, equityholders, partners, members an "INDEMNIFIED PARTY") from and other representatives and each of their respective successors and permitted assigns (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, against any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction claims (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual whether valid or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a wholenot), incurred by damages and liabilities, joint or asserted against any Indemnitee several, to which such Indemnified Party may become subject, related to or arising out of, in any way connected with, or as a result of (i) the Revolving Credit Facility, (ii) the execution or delivery of the Original Credit Agreement, the Existing Credit Agreement, this Amended Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and or thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated herebyhereby and thereby, (iiiii) any Loan or Letter the use of the Letters of Credit or the use proceeds of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) Loans or (iiiiv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee Indemnified Party is a party thereto thereto. The Borrower further agrees to reimburse each Indemnified Party for all expenses (including reasonable attorneys' fees and regardless expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(b) shall not apply in respect of any loss, claim, damage or liability to the extent that a court of competent jurisdiction shall have determined by final and nonappealable judgment that such loss, claim, damage or liability resulted from such Indemnified Party's gross negligence or willful misconduct.
(c) The Borrower agrees to indemnify the Administrative Agent, BOCM, the Issuing Bank, the Lenders and the other Indemnified Parties from and against any and all losses, claims (whether valid or not), damages and liabilities, joint or several, to which such matter is initiated Indemnified Party may become subject, related to or arising out of (i) any Federal, state, local or other statute, ordinance, order, judgment, ruling or regulation relating to environmental pollution, regulation or control affecting the Borrower, any Subsidiary or its properties or assets, (ii) any Hazardous Materials managed by a third party or by Holdings, the Borrower or any of their Subsidiaries Subsidiary, (iii) any event, condition or Affiliates; provided that such indemnity shall notcircumstance involving environmental protection, as pollution, regulation or control affecting the Borrower or any Subsidiary or its properties or assets or (iv) any claim, litigation, investigation or proceeding relating to any Indemniteeof the foregoing, be available whether or not any Indemnified Party is a party thereto. The Borrower further agrees to reimburse each Indemnified Party for all expenses (including reasonable consultants' and attorneys' fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Notwithstanding the foregoing, the obligation to indemnify any Indemnified Party under this Section 9.05(c) shall not apply in respect of any loss, claim, damage or liability to the extent that a court of competent jurisdiction shall have determined by final and nonappealable judgment that such loss, claim, damage or liability resulted from such Indemnified Party's gross negligence or willful misconduct.
(d) In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Borrower will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party's losses, claims, damages or liabilities in such proportions as appropriately reflect the relative benefits received by and fault of the Borrower and such Indemnified Party in connection with the matters as to which such losses, claims, damagesdamages or liabilities relate and other equitable considerations.
(e) If any action, liabilities proceeding or related investigation is commenced, as to which any Indemnified Party proposes to demand such indemnification, it shall notify the Borrower with reasonable promptness; PROVIDED, THAT, any failure by such Indemnified Party to notify the Borrower shall not relieve the Borrower from its obligations hereunder except to the extent the Borrower is prejudiced thereby. The Borrower shall be entitled to assume the defense of any such action, proceeding or investigation, including the employment of counsel and the payment of all fees and expenses. Each Indemnified Party shall have the right to employ separate counsel in connection with any such action, proceeding or investigation and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Party, unless (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1i) the gross negligenceBorrower has failed to assume the defense and employ counsel as provided herein, bad faith or willful misconduct (ii) the Borrower has agreed in writing to pay such fees and expenses of such Indemnitee or any of its Related Parties separate counsel or (2iii) a material breach an action, proceeding or investigation has been commenced against such Indemnified Party and the Borrower and representation of both the obligations of Borrower and such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission Indemnified Party by the Borrower same counsel would be inappropriate because of actual or potential conflicts of interest between the other Subsidiaries parties (other than claims against in the case of the Administrative Agent or any Lead Arranger Lender, the existence of any such actual or potential conflict of interest to be determined by such party, taking into account, among other things, any relevant regulatory concerns). In the case of any circumstance described in its capacity clause (i), (ii), or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(ciii) Subject to and without limiting the generality of the foregoing immediately preceding sentence, the Borrower Parties, jointly shall be responsible for the reasonable fees and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable lawseparate counsel; PROVIDED, Holdings and THAT, the Borrower shall not assertin any event be required to pay the fees and expenses of more than one separate counsel (plus appropriate local counsel under the direction of such separate counsel) for all Indemnified Parties, unless representation of all Indemnified Parties by the same counsel would be inappropriate due to actual or potential conflicting interests between such Indemnified Parties, in which case, the Borrower shall be required to pay the fees and hereby waive, expenses of such additional counsel as are necessary to prevent such conflicting interests. The Borrower shall be liable only for settlement of any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, an Indemnified Party made with the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or therebyBorrower's written consent.
(f) The agreements in provisions of this Section 9.05 shall survive remain operative and in full force and effect regardless of the resignation expiration of the term of this Amended Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the invalidity or unenforceability of any term or provision of this Amended Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the replacement of Agent or any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requestedtherefor.
Appears in 1 contract
Expenses; Indemnity. (a1) The If the Recapitalization Transactions are consummated and the ClosingFourth Amendment Effective Date occurs, the Borrower Parties, jointly and severally, agree to pay all reasonable, documented and invoiced out-of-pocket expenses incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, (including as to post-closing matters), or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenderseach Lender) in connection with the preparation, execution and delivery, amendment, modification, waiver or enforcement of this Agreement (including expenses incurred in connection with due diligence and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower or provided for in this Agreement) or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated)thereof, including the reasonable, documented and invoiced fees, charges and disbursements of a single counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx White & Xxxxxxxx Case LLP), one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and Agent, the Lead Arrangers (and and, in the case of enforcement of this Agreement, the Lenders).
(b2) The Borrower Parties, jointly and severally, agree to indemnify the Administrative Agent, each Lead Arranger, each Lender, each Issuing Bank, each of their respective Affiliates and each of their respective directors, officers, employees, agents, advisors, controlling personsPersons, equityholders, partners, members and other representatives and each of their respective successors and permitted assigns (each such person Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable, documented and invoiced fees, charges out-of-pocket fees and disbursements expenses (limited to reasonable and documented legal fees of one a single firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of an additional counsel for all group of affected Indemnitees subject to such conflict similarly situated taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan Document, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties.
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and the Borrower shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(f) The agreements in this Section 9.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.:
Appears in 1 contract
Expenses; Indemnity. (a) The Borrower Parties, jointly and severally, agree Each Loan Party agrees to pay (i) all reasonable, reasonable and documented and invoiced out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent and the Lead Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent (and in the case of enforcement of this Agreement, the Lenders) in connection with the preparation, execution and delivery, amendment, modification, waiver syndication of the Commitments or enforcement the administration of this Agreement (including expenses incurred in connection with due diligence diligence), and initial and ongoing Collateral examination to the extent incurred with the reasonable prior approval of the Borrower and the reasonable fees, disbursements and charges for no more than one counsel in each jurisdiction where Collateral is located) or provided for in this Agreement) connection with the opening and maintaining of a Dominion Account or in connection with the administration of this Agreement and any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions hereby contemplated shall be consummated), including the reasonablereasonable and documented fees, out-of-pocket charges and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Administrative Agent, and Otterbourg P.C., solely in its capacity as special intercreditor counsel for the Administrative Agent, and, if necessary, the reasonable and documented fees, out-of-pocket charges and invoiced disbursements of one local counsel per jurisdiction, and (ii) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the Administrative Agent or any Lender in connection with the enforcement or protection of their rights in connection with this Agreement and the other Loan Documents, in connection with the Loans made or the Letters of Credit issued hereunder, including the fees, charges and disbursements of a single counsel for the Administrative Agent (including any special and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenders) (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP), one firm of local counsel in each appropriate jurisdiction and, in the case of any actual or perceived conflict of interest, one additional firm of counsel for the Administrative Agent and the Lead Arrangers (and in the case of enforcement of this Agreement, the Lenderscounsel).
(b) The Borrower Parties, jointly and severally, agree Each Loan Party agrees to indemnify the Administrative Agent, each the Agents, the Joint Lead Arranger, each LenderArrangers, each Issuing Bank, each Lender, each of their respective Affiliates and each of their respective directors, trustees, officers, employees, agents, advisors, controlling persons, equityholders, partners, members trustees and other representatives and each of their respective successors and permitted assigns advisors (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonablerelated expenses, including reasonable and documented and invoiced fees, out-of-pocket charges and disbursements of one firm counsel (except the allocated costs of counsel in-house counsel) for all Indemnitees, taken as a whole, and, if necessary, such Indemnitees (plus one firm of local counsel in each appropriate applicable jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case event of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject appointed with the consent of the Borrower, such consent not to such conflict taken as a wholebe unreasonably withheld or delayed), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement or any other Loan DocumentDocument or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations thereunder or the consummation of the Transactions and the other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof (including of the Loans or the use of any refusal by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) , or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto and regardless of whether such matter is initiated by a third party or by Holdings, the Borrower or any of their Subsidiaries subsidiaries or Affiliates; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or (2) a material breach of the obligations of such Indemnitee hereunder or (B) result from any proceeding between or among Indemnitees that does not involve an act or omission by the Borrower or the other Subsidiaries (other than claims against the Administrative Agent or any Lead Arranger in its capacity or in fulfilling its role as the Administrative Agent or a Lead Arranger or any similar role hereunder (excluding its role as a Lender)).
(c) Subject to and without limiting the generality of the foregoing sentence, the Borrower Parties, jointly and severally, agree to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses claims, damages, liabilities and related expenses, including reasonable, documented and invoiced fees, charges and disbursements of one firm of counsel for all Indemnitees, taken as a whole, and, if necessary, one firm of counsel in each appropriate jurisdiction (which may include a single special counsel in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, an additional counsel for all Indemnitees subject to such conflict taken as a whole) and reasonable, documented and invoiced consultant fees, in each case, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of any claim related to Environmental Laws and the Borrower or any of the Restricted Subsidiaries, or any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any property for which the Borrower or any of its Restricted Subsidiaries is, or is alleged to be, liable under Environmental Laws; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the bad faith, gross negligencenegligence or willful misconduct of such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Joint Lead Arranger, any Issuing Bank or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be treated as a single Indemnitee). Subject to and without limiting the generality of the foregoing sentence, each Loan Party agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel or consultant fees, out-of-pocket charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any Environmental Laws and related in any way to Holdings, the Borrower or any of their respective Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on, from or to any property related in any way to Holdings, the Borrower or any of their respective Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available (i) to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith faith, gross negligence or willful misconduct of such Indemnitee or any of its Related Parties, (ii) to the extent arising from a material breach of any such Indemnitee’s obligations under the Loan Documents, as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (iii) to the extent arising out of any claim, litigation, investigation or proceeding that does not involve an act or omission of the Loan Parties or any of their affiliates and that is brought by an Indemnitee against any other Indemnitee (other than claims against an Indemnitee in its capacity or in fulfilling its role as Administrative Agent or Joint Lead Arranger or any similar role under the Loan Documents). None of the Indemnitees (or any of their respective affiliates) shall be responsible or liable to Holdings, the Borrower or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of any Revolving Facility or the Transactions. The provisions of this Section 10.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, any Issuing Bank or any Lender. All amounts due under this Section 10.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Except as expressly provided in Section 10.05(a) with respect to Other Taxes, which shall not be duplicative with any amounts paid pursuant to Section 2.17, this Section 10.05 shall not apply to any Taxes (other than Taxes that represent losses, claims, damages, liabilities and related expenses resulting from a non-Tax claim).
(d) Any indemnification or payments required by the Loan Parties under this Section 9.05 shall not be duplicative of any indemnification or payments required by the Loan Parties under Section 2.17.
(e) To the fullest extent permitted by applicable law, Holdings and Holdings, the Borrower and their respective subsidiaries shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Commitment, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
(fe) The agreements in this Section 9.05 10.05 shall survive the resignation of the Administrative Agent, any Issuing Bank, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations and the termination of this Agreement. All amounts due under this Section 9.05 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
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Samples: Asset Based Revolving Credit Agreement (Verso Corp)