Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 7 contracts

Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.), Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of ~~one firm of outside counsel to all such Persons taken as a whole~~ Cravath, Swaine & Mxxxx LLP and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of ~~outside~~ counsel ~~to all such Persons taken as a whole~~ and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of counsel ~~to all Indemnitees taken as a whole~~ and, if ~~reasonably~~ necessary, of one local counsel in any relevant jurisdiction to all Indemnitees, taken as a ~~whole and~~ whole, and, solely in the case of an actual or ~~perceived~~ potential conflict of interest, ~~(x)~~ one additional counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, ~~and (y)~~ and, if reasonably necessary, one additional local counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, in each relevant jurisdiction), ) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of any claim, litigation, investigation or proceeding, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates) relating to (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use or the proposed use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release, threatened Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any other Environmental Liability to the extent related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)Party; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnitee, or to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not ~~involve~~ arise out of any act or omission of the Sponsors, Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. ~~Each~~ Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or and return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or ~~conditioned~~conditioned (it being understood that the withholding of consent due to non-satisfaction of either of the conditions described in clauses (i) and (ii) of the following sentence (with “Borrower” being substituted for “Indemnitee” in each such clause) shall be deemed reasonable)), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or ~~culpability~~culpability of the relevant Indemnitee. (d) 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 thereby except to the extent the liability of any such person is found in a final ruling by a court of competent jurisdiction to have resulted from such person’s gross negligence or willful misconduct.

Appears in 6 contracts

Samples: Fourth Amendment to the First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the ~~foregoing~~foregoing (including any matters arising under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 5 contracts

Samples: First Lien Credit Agreement (Isos Acquisition Corp.), First Lien Credit Agreement (Isos Acquisition Corp.), First Incremental Amendment (Isos Acquisition Corp.)

Expenses; Indemnity. (a) Subject to ~~Section~~ ‎Section 9.05(f), the ~~Borrower~~ Borrowers shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrowers, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersBorrowers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a‎(a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Parent Borrower of such conflict, (x) one additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by ‎Section 2.17), (ii) the use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the ~~foregoing~~foregoing (including any matters arising under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of ~~the~~ Holdings, any Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this ~~Section~~ ‎Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b‎(b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the Parent Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Parent Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This ~~Section~~ ‎Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Parent Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 4 contracts

Samples: First Lien Credit Agreement (Lucky Strike Entertainment Corp), First Lien Credit Agreement (Bowlero Corp.), First Lien Credit Agreement (Bowlero Corp.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the Parent Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days of receipt by the Parent Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Existing Credit Agreement Transactions or the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Parent Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Parent Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of ~~the~~ Holdings, any Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by ~~the~~ any Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days (x) after receipt by the Parent Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Parent Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the relevant Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: Term Loan Credit Agreement (Ecovyst Inc.), Term Loan Credit Agreement (Ecovyst Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole (and solely in the case of a conflict of interest, (A) one additional counsel to all affected Persons, taken as a whole, and (B) one additional local counsel in any such jurisdiction to all affected Persons, taken as a whole), and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of any such loss, claim, damage and/or liability constituting legal fees and ~~expenses,~~ expenses to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of ~~an actual or perceived~~ a conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third party or by or against the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s Related Party’s) material breach of the Loan Documents (other than, with the written consent of the Borrower in its sole discretion, the Administrative Agent, in its capacity as such, in respect of obligations not owed to the Loan Parties) or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. ~~All amounts~~ Any amount due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: Credit Agreement (First Watch Restaurant Group, Inc.), Credit Agreement (First Watch Restaurant Group, Inc.), Credit Agreement (Definitive Healthcare Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative ~~Agent~~ Agent, the Lender Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel ~~to all such Persons~~ for the Administrative Agent and (y) one firm of outside counsel for the Arranger, the Lender Representative and their respective Affiliates (taken as a ~~whole and,~~ whole) and (z) if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arranger, the Issuing Banks or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (A) one firm of outside counsel to for the Administrative Agent and (B) one firm of outside counsel for all ~~such Persons~~ the Arranger and the Lender Representative and their respective Affiliates (taken as a ~~whole and,~~ whole) and (C) if necessary, of one local counsel in any relevant material jurisdiction to the Administrative Agent and one local counsel for all such other Persons, taken as a whole, and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Parent Loan Guarantor or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Parent Loan Guarantor and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: Credit Agreement (ATI Physical Therapy, Inc.), Credit Agreement (ATI Physical Therapy, Inc.), Credit Agreement (ATI Physical Therapy, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Top Borrower and except as otherwise provided in a separate writing between the Top Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by ~~the~~ any Borrower within 30 days of receipt by the Top Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Top Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Top Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Top Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Top Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by ~~the~~ any Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by ~~the~~ any Borrower within 30 days (x) after receipt by the Top Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Top Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without the written consent of the Top Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Top Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: First Lien Credit Agreement (Cotiviti Holdings, Inc.), First Lien Credit Agreement (Cotiviti Holdings, Inc.), First Lien Credit Agreement (Cotiviti Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), if the ~~Borrower~~ Closing Date occurs, the Issuer shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger~~Purchaser, the ~~Administrative Agent~~ Purchaser Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel ~~to all such Persons~~ for the Purchaser Representative and (y) one firm of outside counsel for the Purchasers and their respective Affiliates (taken as a ~~whole and,~~ whole) and (z) if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the ~~syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the~~ preparation, execution, delivery and administration of the ~~Loan~~ Note Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any ~~Loan~~ Note Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Issuer and except as otherwise provided in a separate writing between the ~~Borrower, the relevant Arranger~~ Issuer and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersPurchaser Representative) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the ~~Administrative Agent, the Arrangers~~ Purchaser Representative or the ~~Lenders~~ Purchasers or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (A) one firm of outside counsel to for the Purchaser Representative and (B) one firm of outside counsel for all ~~such Persons~~ the Purchasers and their respective Affiliates (taken as a ~~whole and,~~ whole) and (C) if necessary, of one local counsel in any relevant material jurisdiction to the Purchaser Representative and one local counsel for all such other Persons, taken as a whole, and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Issuer (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the ~~Loan~~ Note Documents, including their respective rights under this Section, or in connection with the ~~Loans made~~ Notes purchased hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Issuer within 30 days of receipt by the ~~Borrower~~ Issuer of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) ~~The Borrower~~ If the Closing Date occurs, the Issuer shall indemnify ~~each Arranger,~~ the ~~Administrative Agent~~ Purchaser Representative and each ~~Lender~~Purchaser, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel ~~to all Indemnitees~~ for the Purchaser Representative and (y) one firm of outside counsel for the Purchasers and their respective Affiliates (taken as a ~~whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole~~ whole) and solely in the case of an actual or perceived conflict of interest, ~~(x)~~ one additional counsel to all affected Purchasers, taken as a whole, and (z) if necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole, and ~~(y)~~ solely in the case of an actual or perceived conflict of interest, one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the ~~Loan~~ Note Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the ~~Loan~~ Note Documents, (ii) the use of the proceeds of the ~~Loans~~Notes, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the ~~Borrower~~Issuer, any of its Restricted Subsidiaries or any other ~~Loan~~ Note Party or any Environmental Liability related to the ~~Borrower~~Issuer, any of its Restricted Subsidiaries or any other ~~Loan~~ Note Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Issuer, any other ~~Loan~~ Note Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, other than with respect to the Purchaser Representative or its Related Parties, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the ~~Loan~~ Note Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the ~~Administrative Agent or any Arranger~~Purchaser Representative, acting in its capacity as the ~~Administrative Agent~~ Purchaser Representative or ~~as an Arranger~~its Related Parties) that does not involve any act or omission of the ~~Borrower~~ Issuer or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Issuer pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Issuer within 30 days (x) after receipt by the ~~Borrower~~ Issuer of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the ~~Borrower~~ Issuer of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The ~~Borrower~~ Issuer shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the ~~Borrower~~Issuer, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower~~ Issuer agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Issuer shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the ~~Borrower~~ Borrowers shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a ~~whole~~ whole, and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the ~~Term Facility~~Credit Facilities, in connection with the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Administrative Borrower and except as otherwise provided in a separate writing between the Administrative Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the Administrative Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Administrative Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Administrative Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Administrative Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Administrative Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Administrative Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the Administrative Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Administrative Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement of any proceeding effected without the written consent of the Administrative Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Administrative Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 3 contracts

Samples: Credit Agreement (Syneos Health, Inc.), Credit Agreement (Syneos Health, Inc.), Credit Agreement (INC Research Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the Revolving Facility, the Delayed Draw Term Loan Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole (and solely in the case of a conflict of interest, (A) one additional counsel to all affected Persons, taken as a whole, and (B) one additional local counsel in any such jurisdiction to all affected Persons, taken as a whole), and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower ~~within 30 days of~~ upon receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of any such loss, claim, damage and/or liability constituting legal fees and ~~expenses,~~ expenses to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of ~~an actual or perceived~~ a conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third party or by or against the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s Related Party’s) material breach of the Loan Documents (other than, with the written consent of the Borrower in its sole discretion, the Administrative Agent, in its capacity as such, in respect of obligations not owed to the Loan Parties) or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. ~~All amounts~~ Any amount due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower (x) within 30 days ~~(x)~~ after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, ~~after~~ upon receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the~~ The Parent Borrower shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of ~~outside~~ counsel ~~to all such Persons taken as a whole~~ and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Parent Borrower and except as otherwise provided in a separate writing between the Parent Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of ~~outside~~ counsel ~~to all such Persons taken as a whole~~ and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Parent Borrower within 30 days of receipt by the Parent Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Certara, Inc.), Credit Agreement (Certara, Inc.)

Expenses; Indemnity. (a) Subject to Section ~~9.05(f~~10.05(f), the ~~Borrower~~ Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersBorrowers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the ~~Borrower~~ Parent of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each ~~Lender~~Issuing Bank, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Parent of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of ~~the~~ any Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section ~~9.03(b~~10.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the ~~Borrower~~ Parent of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the ~~Borrower~~ Parent of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section ~~9.03(b~~10.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Parent’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity ~~could have~~ has been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Bausch Health Companies Inc.), Restatement Agreement (Valeant Pharmaceuticals International, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by Parent, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersParent) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each ~~Lender~~Issuing Bank, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies Parent of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) ~~any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by~~ to the ~~Borrower,~~ extent related to any of ~~its Restricted Subsidiaries~~ the foregoing (including the exercise of any rights of any Arranger, Administrative Agent, Issuing Bank, Lender or ~~any other Loan~~ Related Party or arising in connection with the matters that are the subject of clause (i) above), any Environmental Liability related in any way to the ~~Borrower,~~ Borrower or any of its ~~Restricted~~ Subsidiaries or ~~any other Loan Party and/or~~ (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the Borrower~~Parent, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of ~~the Borrower~~ Parent or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Reynolds Consumer Products Inc.), Credit Agreement (Reynolds Consumer Products Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date ~~(with any expense reimbursement in connection therewith to be governed by~~ and on the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) Amendment No. 1 Effective Date and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related in any way to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger, the Administrative~~ Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower or any other Loan Party and except as otherwise provided in a separate writing between the ~~Borrower,~~ Borrower or the relevant ~~Arranger and/or the Administrative~~ Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by each Issuing Bank in connection with the ~~Administrative Agent~~issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Agents, the ~~Arrangers~~ Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, (x) to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one firm of outside counsel to all such Persons taken as a whole and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of Persons, and (y) if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole~~whole and, solely in the case of an actual or potential conflict of interest, one additional local counsel to each similarly situated group of Persons, in each such relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each ~~Arranger~~Agent, each Issuing Bank, the ~~Administrative Agent~~ Swingline Lender and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole, and (y) one additional local counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)) or (iv) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by any Loan Party or the Restricted Subsidiaries, or any Environmental Liability of any Loan Party or the Restricted Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent a final and non-appealable judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against ~~the Administrative Agent or~~ any ~~Arranger~~Agent, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the Sponsors, the Borrower or any of ~~its Affiliates~~their respective Affiliates or Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof, as determined by a final non-appealable judgment of a court of competent jurisdiction. All amounts due under this ~~paragraph~~ clause (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. This ~~Section 9.03(b~~clause (b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, ~~damages or liabilities in respect of a~~ damages, etc. arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, ~~delayed~~ conditioned or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower ~~agrees~~ agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Victory Capital Holdings, Inc.), Credit Agreement (Victory Capital Holdings, Inc.)

Expenses; Indemnity. (a) ~~Subject~~ The Borrowers agree to ~~Section 9.05(f~~pay, within 30 days of written demand therefor (including documentation reasonably supporting such request), ~~the Borrower shall pay~~ (i) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by ~~each Arranger~~the Administrative Agent, the Collateral Agent and the Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent or the Collateral Agent in connection with the administration of this Agreement and ~~their respective Affiliates~~ any amendments, modifications or waivers of the provisions hereof or thereof (~~but~~ limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable ~~and documented out-of-pocket~~ fees, charges and disbursements of a single primary counsel for the Administrative Agent, the Collateral Agent and ~~other charges of one firm of outside counsel to all such Persons taken as a whole~~ the Arrangers, and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction and/or a single firm of regulatory counsel, in ~~any relevant jurisdiction to~~ each case, for all such ~~Persons~~persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the ~~Administrative Agent~~Agents, the ~~Arrangers~~ L/C Issuers 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 ~~Lenders or any~~ Letters of ~~their respective Affiliates~~ Credit issued hereunder (~~but~~ excluding allocated costs of in-house counsel and limited, (i) in the case of legal fees and expenses, to the ~~actual~~ reasonable ~~and documented out-of-pocket~~ fees, charges and disbursements ~~and other charges~~ of ~~one firm of outside~~ a single primary counsel to for all such ~~Persons~~ persons, taken as a ~~whole~~ whole, and, if necessary, the reasonable fees, charges and disbursements of one local counsel in ~~any relevant~~ each appropriate jurisdiction to and/or regulatory counsel for all such ~~Persons~~persons, taken as a ~~whole~~whole (and, in the event of any actual or perceived conflict of interest where such person affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel with the Borrowers’ prior written consent (not to be unreasonably withheld), of another single firm of counsel for each group of similarly situated persons) and (ii) in ~~connection with~~ the ~~enforcement~~case of fees or expenses of any other advisor or consultant, ~~collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except~~ solely to the extent ~~required~~ the Borrowers have consented to ~~be paid on~~ the ~~Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days~~ retention of ~~receipt by the Borrower of an invoice setting forth~~ such ~~expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request~~person). (b) The ~~Borrower shall~~ Borrowers agree to indemnify ~~each Arranger~~the Administrative Agent, the ~~Administrative Agent and~~ Agents, the Arrangers, each L/C Issuer, each Lender, each of their respective Affiliates, and each ~~Related Party~~ of ~~any of the foregoing Persons~~ their respective directors, partners, officers, employees, agents, trustees and advisors (each such ~~Person~~ person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, ~~damages~~ damages, liabilities and ~~liabilities~~ related expenses, including reasonable counsel fees, charges and disbursements (~~but limited,~~ limited in the case of legal fees ~~and expenses,~~ to the ~~actual~~ reasonable ~~and~~ documented out-of-pocket ~~fees~~legal expenses incurred in connection with investigating or defending any of the items in clauses (i) through (v) below, ~~disbursements~~ and ~~other charges~~ excluding the allocated costs of in house counsel and limited to not more than one counsel to for all ~~Indemnitees~~ such Indemnitees, taken as a ~~whole~~ whole, and, if ~~reasonably~~ necessary, ~~one~~ a single local counsel in ~~any relevant~~ each appropriate jurisdiction to and/or a single firm of regulatory counsel, in each case, for all such Indemnitees, taken as a whole ~~and solely~~ (and, in the case of an actual or perceived conflict of ~~interest~~interest where the Indemnitee affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel with the Borrowers’ prior written consent (not to be unreasonably withheld or delayed), of another firm of counsel (~~x) one additional counsel to all affected Indemnitees, taken as a whole,~~ and ~~(y) one additional~~ local counsel ~~to all affected Indemnitees, taken as a whole~~and/or regulatory counsel, in each ~~relevant jurisdiction~~case, as applicable) for each group of similarly situated Indemnitees)), and, in the case of fees or expenses with respect to any other advisor or consultant, limited solely to the extent the Borrowers have consented to the retention of such person, incurred by or asserted against any Indemnitee arising out of, in ~~connection~~ any way connected with, or as a result of (i) the execution or delivery of ~~the~~ this Agreement or any other Loan ~~Documents~~ 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 ~~or any~~ and the other transactions contemplated ~~hereby or thereby and/or the enforcement of the Loan Documents~~hereby, (ii) the use of the proceeds of the ~~Loans~~Loans or the use of any Letter of Credit, (iii) any ~~actual~~ violation of or ~~alleged Release or presence of Hazardous Materials on, at,~~ liability under ~~or from~~ Environmental Laws by any ~~property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries~~ Borrower or any ~~other Loan Party or any Environmental Liability related to the Borrower~~Subsidiary, ~~any of its Restricted Subsidiaries or any other Loan Party and/or~~ (iv) any actual or ~~prospective~~ alleged presence, Release or threatened Release of or exposure to Hazardous Materials at, under, on, from or to any property owned, leased or operated by any Borrower or any Subsidiary or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether ~~based on contract, tort~~ or ~~any other theory and regardless of whether~~ not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the Borrower, any other Loan Party~~ a Borrower or any of their ~~respective~~ subsidiaries or Affiliates); ~~provided~~ provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that ~~any~~ such ~~loss~~losses, ~~claim~~claims, ~~damage~~damages, liabilities or ~~liability~~ related expenses (ix) is are determined by a ~~final and~~ 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 ~~such Person’s~~ any of its Related Parties (for purposes of this proviso only, each of the Agents, any Arranger, any L/C Issuer and 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) or (2) any material breach of any Loan Document, the ~~Loan Documents~~ Engagement Letter or the Fee Letter by such Indemnitee or any of its Related Parties or (iiy) ~~arises out of~~ arose from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of any Borrower or any of its Affiliates and is brought by ~~such~~ an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding ~~that is brought by~~ against any Agent, Arranger or ~~against the Administrative Agent or any Arranger, acting~~ L/C Issuer in its capacity as such); provided further, that such indemnity shall not, as to any Indemnitee, be available with respect to any settlement entered into by such Indemnitee or any of its Related Parties without the ~~Administrative Agent~~ Borrowers’ written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided further, that such indemnity shall not, as ~~an Arranger) that does not involve~~ to any ~~act or omission~~ Indemnitee, be available with respect to any expenses of the type referred to in Section 9.05(a) except to the extent such expenses would otherwise be of the type referred to in this Section 9.05(b). None of the Indemnitees (or any of their respective Affiliates) shall be responsible or liable to any Borrower or any of ~~its Affiliates~~their 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. ~~Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to~~ The provisions of this Section ~~9.03(b) to such Indemnitee for~~ 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 ~~fees~~of the Obligations, ~~expenses~~the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or ~~damages to~~ any investigation made by or on behalf of the ~~extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof~~Administrative Agent, any Arranger, any L/C Issuer or any Lender. All amounts due under this ~~paragraph (b)~~ Section 9.05 shall be payable ~~by the Borrower~~ within 30 fifteen (15) days ~~(x)~~ after ~~receipt by the Borrower of a~~ written demand ~~therefor~~therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested. (c) Except as expressly provided in ~~the case~~ Section 9.05(a) with respect to Other Taxes, which shall not be duplicative of any ~~indemnification obligations and (y) in the case of reimbursement of costs and expenses~~amounts paid pursuant to Section 2.17, ~~after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This~~ this Section ~~9.03(b)~~ 9.05 shall not apply to ~~Taxes other than any~~ Taxes, except Taxes that represent ~~losses, claims,~~ damages or ~~liabilities in respect of~~ losses resulting from a non-Tax claim. (cd) ~~The Borrower~~ To the fullest extent permitted by applicable law, each of the parties hereto shall not assert, and hereby waives, any claim against any other party hereto or any of their respective Related Parties, 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 Loan or Letter of Credit or the use of the proceeds thereof; provided, that nothing contained in this sentence shall limit the Borrower’s indemnification obligations to the extent set forth hereinabove to the extent such special, indirect, consequential or punitive damages are included in any third party claim in connection with which such Indemnitee is entitled to indemnification hereunder. No Indemnitee shall be liable for any ~~settlement~~ damages arising from the use by unintended recipients of any ~~proceeding effected without~~ information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the ~~written consent~~ other Loan Documents or the transactions contemplated hereby or thereby. (e) The agreements in this Section 9.05 shall survive the resignation of the ~~Borrower (which consent shall not be unreasonably withheld~~Administrative Agent, ~~delayed or conditioned)~~the Collateral Agent, ~~but if~~ any ~~proceeding is settled with~~ L/C Issuer, the ~~written consent~~ replacement of any Lender, the termination of the ~~Borrower~~Commitments and the repayment, satisfaction or ~~if there is a final judgment against any Indemnitee in any such proceeding,~~ discharge of all the ~~Borrower agrees to indemnify~~ other Obligations and ~~hold harmless each Indemnitee to~~ the ~~extent and in the manner set forth above. The Borrower shall not, without the prior written consent~~ termination of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpabilitythis Agreement.

Appears in 2 contracts

Samples: Incremental Assumption Agreement (Caesars Entertainment, Inc.), Credit Agreement (CAESARS ENTERTAINMENT Corp)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f)~~The Borrower Representative and all Borrowers, ~~the Borrower~~ jointly and severally, shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole (subject to any applicable fee cap) and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower Representative and except as otherwise provided in a separate writing between the ~~Borrower~~Borrower Representative, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a ~~whole and~~whole, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower Representative within 30 days of receipt by the Borrower Representative of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower Representative and all Borrowers, jointly and severally, shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Indemnitees, taken as a whole, and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an any such actual or ~~perceived~~ potential conflict of interest, ~~(x) one additional counsel to all affected Indemnitees, taken as a whole, and (y)~~ one additional local counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole, in each relevant jurisdiction), ) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use or the proposed use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the ~~Borrower,~~ Parent or any of its ~~Restricted~~ Subsidiaries ~~or any other Loan Party~~ or any Environmental Liability related to the ~~Borrower,~~ Parent or any of its ~~Restricted~~ Subsidiaries ~~or any other Loan Party~~ and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the Borrower,~~ any ~~other~~ Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not ~~involve~~ arise out of any act or omission of the ~~Borrower~~ Parent or any of its ~~Affiliates~~Subsidiaries. ~~Each~~ Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or and return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this ~~paragraph~~ clause (b) shall be payable by the Borrower Representative within 30 days (x) after receipt by the Borrower Representative of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower Representative of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without the written consent of the Borrower Representative (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the ~~Borrower~~Borrower Representative, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower Representative agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or ~~culpability~~culpability of the relevant Indemnitee.

Appears in 2 contracts

Samples: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the ~~Closing~~ Restatement Effective Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Restatement Effective Date Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Shift4 Payments, Inc.), First Lien Credit Agreement (Shift4 Payments, Inc.)

Expenses; Indemnity. (a) Subject to ~~Section~~ ‎Section 9.05(f), the ~~Borrower~~ Borrowers shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrowers, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersBorrowers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a‎(a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the Parent Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each ~~Lender~~Issuing Bank, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Parent Borrower of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of ~~the~~ Holdings, any Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this ~~Section~~ ‎Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b‎(b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the Parent Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Parent Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This ~~Section~~ ‎Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Parent Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity ~~could have~~ has been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Ryman Hospitality Properties, Inc.), Credit Agreement (Ryman Hospitality Properties, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole and, solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole and (y) one additional local counsel in each relevant material jurisdiction to all affected Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date pursuant to Section 4.01(f), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the Borrower Representative of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify ~~each Arranger~~the Arrangers, the Administrative ~~Agent and~~ Agent, each Issuing Bank, each Lender, the Swingline Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a ~~whole,~~ whole and (y) one additional local counsel in each relevant material jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by ~~the~~ any Borrower, any ~~of its~~ Restricted ~~Subsidiaries~~ Subsidiary or any other Loan Party or any Environmental Liability related to ~~the~~ any Borrower, any ~~of its~~ Restricted ~~Subsidiaries~~ Subsidiary or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); ~~provided~~ provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a ~~final and~~ 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Sponsor, Holdings, any Borrower or any of its ~~Affiliates~~subsidiaries (as determined by a court of competent jurisdiction in a final, non-appealable judgment). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt ~~by the Borrower~~ of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Borrower Representative’s written ~~consent of the Borrower~~consent, or if there is a ~~final~~ final, non-appealable judgment against any Indemnitee in any such proceeding, the Borrower Representative agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Knowlton Development Corp Inc), Credit Agreement (Knowlton Development Parent, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each~~ the Arranger, Oak Hill, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the ~~relevant Arranger~~ Arranger, Oak Hill and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arranger, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each~~ the Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or ~~any~~ the Arranger, acting in its capacity as the Administrative Agent or as an the Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Definitive Healthcare Corp.), Credit Agreement (Definitive Healthcare Corp.)

Appears in 2 contracts

Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term~~ Revolving Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole (and solely in the case of a conflict of interest, (A) one additional counsel to all affected Persons, taken as a whole, and (B) one additional local counsel in any such jurisdiction to all affected Persons, taken as a whole), and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower ~~within 30 days of~~ upon receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of any such loss, claim, damage and/or liability constituting legal fees and ~~expenses,~~ expenses to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of ~~an actual or perceived~~ a conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third party or by or against the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s Related Party’s) material breach of the Loan Documents (other than, with the written consent of the Borrower in its sole discretion, the Administrative Agent, in its capacity as such, in respect of obligations not owed to the Loan Parties) or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. ~~All amounts~~ Any amount due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower (x) within 30 days ~~(x)~~ after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, ~~after~~ upon receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Top Borrower and except as otherwise provided in a separate writing between the Top Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by ~~the~~ any Borrower within 30 days of receipt by the Top Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned ~~or leased~~ by the Top Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Top Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Top Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Top Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by ~~the~~ any Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by ~~the~~ any Borrower within 30 days (x) after receipt by the Top Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Top Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without the written consent of the Top Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Top Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Cotiviti Holdings, Inc.), Second Lien Credit Agreement (Cotiviti Holdings, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses, but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related in any way to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of ~~one firm of outside counsel to all such Persons taken as a whole~~ Cravath, Swaine & Xxxxx LLP and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of ~~outside~~ counsel ~~to all such Persons taken as a whole~~ and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of counsel ~~to all Indemnitees taken as a whole~~ and, if ~~reasonably~~ necessary, of one local counsel in any relevant jurisdiction to all Indemnitees, taken as a ~~whole and~~ whole, and, solely in the case of an actual or ~~perceived~~ potential conflict of interest, ~~(x)~~ one additional counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, ~~and (y)~~ and, if reasonably necessary, one additional local counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, in each relevant jurisdiction), ) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of any claim, litigation, investigation or proceeding, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates) relating to (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use or the proposed use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release, threatened Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any other Environmental Liability to the extent related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)Party; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnitee, or to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not ~~involve~~ arise out of any act or omission of the Sponsors, Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. ~~Each~~ Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or and return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or ~~conditioned~~conditioned (it being understood that the withholding of consent due to non-satisfaction of either of the conditions described in clauses (i) and (ii) of the following sentence (with “Borrower” being substituted for “Indemnitee” in each such clause) shall be deemed reasonable)), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or ~~culpability~~culpability of the relevant Indemnitee. (d) 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 thereby except to the extent the liability of any such person is found in a final ruling by a court of competent jurisdiction to have resulted from such person’s gross negligence or willful misconduct.

Appears in 2 contracts

Samples: First Amendment to the First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole and, solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole and (y) one additional local counsel in each relevant material jurisdiction to all affected Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date pursuant to Section 4.01(f), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the Borrower Representative of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Incremental Amendment to Credit Agreement (Knowlton Development Corp Inc), Incremental Amendment to Credit Agreement (Knowlton Development Parent, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers and Intermediate Holdings shall jointly and severally pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, negotiation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole, and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole and (y) one additional local counsel in each appropriate jurisdiction to all such affected Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (bI) The ~~Borrower~~ Borrowers and Intermediate Holdings shall jointly and severally indemnify each ~~Arranger,~~ of the Administrative ~~Agent and~~ Agent, Arrangers, Lenders, each Issuing Bank, Swingline Lender, their respective affiliates and the officers, directors, employees, advisors, agents, controlling persons and members of each ~~Related Party of any~~ of the foregoing ~~Persons~~ (~~each such Person being called~~ each, an “~~Indemnitee~~Indemnified Person”) ~~against, and hold each Indemnitee harmless from, any and all~~ for losses, claims, ~~damages and~~ damages, liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee expenses arising out ~~of,~~ of or in connection ~~with,~~ with or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by ~~the~~ Holdings, any Borrower, any of ~~its~~ their Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to ~~the~~ Holdings, any Borrower, any of ~~its~~ their Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or other proceeding relating to any of the foregoing, whether based on contract, tort or any other theory ~~and~~ (regardless of whether ~~any Indemnitee~~ such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a the equity holders or creditors of Holdings or any Borrower or any other third party or by ~~the~~ Holdings, any Borrower, any other Loan Party or any of their respective Affiliates)~~; provided that such indemnity shall not~~, ~~as to any Indemnitee, be available~~ or to the ~~extent that~~ actual or alleged Release or presence of Hazardous Materials on, at, under, or from any ~~such loss~~property currently or formerly owned or operated by Holdings, ~~claim~~any Borrower or any Restricted Subsidiary. (II) Notwithstanding anything to the contrary in clause (I) above, ~~damage~~no Indemnified Person will be indemnified under the indemnity in clause (I) above for (A) any cost, expense or liability (i) is to the extent determined by ~~a final and non-appealable judgment of~~ a court of competent jurisdiction in a final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnified Person or any of such Indemnified Person’s Related Parties, (ii) arising from a material breach of ~~the~~ such Indemnified Person’s (or any of its Related Parties’) obligations under any Loan ~~Documents~~ Document, as determined by a court of competent jurisdiction in a final, non-appealable judgment or (iiiii) ~~arises out of~~ arising from any claim, ~~litigation~~actions, ~~investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim~~suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of Holdings, any Borrower or any of their Affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Administrative ~~Agent or~~ Agent, any Arranger, ~~acting~~ any Issuing Bank or any Swingline Lender in its capacity as ~~the Administrative Agent~~ such), or ~~as an Arranger~~(B) ~~that does not involve~~ any ~~act or omission of the Borrower~~ settlement entered into by such Indemnified Person (or any of its ~~Affiliates. Each Indemnitee shall be obligated to refund~~ affiliates, successors, assigns or ~~return any and all amounts paid by~~ Related Parties) without the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the Representative’s written consent ~~of the Borrower~~ (~~which~~ such consent ~~shall~~ not to be unreasonably withheld, delayed or conditioned), but if ~~any proceeding is~~ settled with the Borrower Representative’s written ~~consent of the Borrower~~consent, or if there is a final judgment against ~~any Indemnitee~~ an Indemnified Person in any such proceeding, the ~~Borrower agrees to~~ Borrowers and Intermediate Holdings shall jointly and severally indemnify and hold harmless each ~~Indemnitee~~ Indemnified Person to the extent and in the manner set forth above~~. The Borrower shall not~~; provided, ~~without~~ however, that the ~~prior written consent~~ indemnity in clause (I) above will apply to any such settlement in the event that Intermediate Holdings or the Borrowers were offered the ability to assume the defense of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims action that ~~are~~ was the subject matter of such ~~proceeding~~ settlement and ~~(ii)~~ elected not to assume such ~~settlement does not include any statement as to any admission of fault or culpability~~defense.

Appears in 2 contracts

Samples: Credit Agreement (Indivior PLC), Credit Agreement (Indivior PLC)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Lead Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided in a separate writing between the Lead Borrower, the relevant ~~Arranger~~ Arranger, the relevant Issuing Bank and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Lead Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in ~~any relevant~~ each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Lead Borrower, any other Loan Party or any of their respective ~~Affiliates);~~ Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s affiliates, successors, assigns or Related Parties) material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any ~~Arranger~~Arranger or Issuing Bank, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the ~~Borrower~~ Holdings, the Borrowers or any of ~~its Affiliates~~their subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Lead Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any Loan Party that is not Holdings, the Lead Borrower or any Domestic Subsidiary have any payment, reimbursement or guarantee obligations for the Lead Borrower or any Domestic Subsidiary for the payment requirements under this Section 9.03. (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Lead Borrower’s written ~~consent~~ consent, or if the Lead Borrower is offered the ability to assume the defense of the ~~Borrower~~action that was the subject matter of such settlement and elected not to assume such defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Lead Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 2 contracts

Samples: Credit Agreement (SB/RH Holdings, LLC), Credit Agreement (SB/RH Holdings, LLC)

Expenses; Indemnity. (a) Subject to ~~Section~~ ‎Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger~~Principal Investor, the Administrative ~~Agent~~ Agent, the Arranger and the Principal Investor Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with ~~the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility,~~ the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arranger, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a‎(a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each~~ the Administrative Agent, the Arranger, the ~~Administrative Agent~~ Principal Investor Representative, each Issuing Bank, each Lender and ~~each Lender~~their respective Affiliates and controlling Persons and the respective directors, officers, employees, members, agents, advisors and ~~each Related Party~~ other representatives, successors and assigns of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any ~~actual~~ Environmental Liability related in any way to the Borrower or ~~alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower,~~ any of its ~~Restricted~~ Subsidiaries or ~~any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or~~ (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Indemnitee Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s or an Indemnitee Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, the Arranger, the Principal Investor Representative or any ~~Arranger~~Issuing Bank, acting in its capacity as the Administrative ~~Agent~~ Agent, as the Arranger, as the Principal Investor Representative or as an ~~Arranger~~Issuing Bank) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this ~~Section~~ ‎Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b‎(b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. ~~This Section~~ Notwithstanding anything to the contrary, this ‎Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) ~~such settlement~~ includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such ~~proceeding and~~ proceeding, (ii) includes confidentiality provisions that are customary or are reasonably satisfactory to such ~~settlement~~ Indemnitee and (iii) does not include any statement as to any admission of ~~fault~~ fault, culpability, wrongdoing or ~~culpability~~a failure to act by or on behalf of any Indemnitee (it being understood that such Indemnitee may reasonably withhold its consent to any settlement that does not comply with this sentence in any material respect).

Appears in 1 contract

Samples: First Lien Credit Agreement (Ranpak Holdings Corp.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented and out-of-pocket expenses incurred by ~~each Arranger~~the Administrative Agent, the Lead Lender and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented and invoiced out- of-pocket fees, disbursements and other charges of one firm of outside counsel to the Administrative Agent and ~~their respective Affiliates~~ one firm of outside counsel to all other such Persons, taken as a whole, and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole (it being understood and agreed that any jurisdiction of organization of a Loan Party that is organized outside of the United States (which, for the purpose hereof, shall not include any territory or protectorate thereof) or the District of Columbia shall be deemed to be material), which may include a single local counsel acting in multiple jurisdictions) in connection with the closing and funding of the of the Credit Facilities and the preparation, execution, delivery and administration of the Loan Documents (including in connection with any visit or inspection permitted by Section 5.06) and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document, and (ii) all documented and invoiced out-of-pocket expenses incurred by the Administrative Agent, the Lead Lender or the Lenders (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all other such ~~Persons~~ Persons, taken as a ~~whole~~ whole, and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a ~~whole) in connection with the syndication~~ whole (it being understood and ~~distribution (including via the Internet or through~~ agreed that any jurisdiction of organization of a ~~service such as IntraLinks)~~ Loan Party that is organized outside of the ~~Term Facility~~United States (which, for the ~~preparation~~purpose hereof, ~~execution, delivery and administration~~ shall not include any territory or protectorate thereof) or the District of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only Columbia shall be deemed to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agentbe material), ~~but excluding~~ which may include a single local counsel acting in multiple jurisdictions and solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of ~~legal fees~~ an actual or perceived conflict of interest where any affected Lender informs the Borrower of such conflict and ~~expenses~~retains its own counsel, ~~to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ (x) one ~~firm of outside~~ additional counsel to all ~~such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons~~affected Lenders, taken as a whole, and (y) one additional local counsel to all affected Lenders, taken as a whole (it being understood and agreed that any jurisdiction of organization of a Loan Party that is organized outside of the United States (which, for the purpose hereof, shall not include any territory or protectorate thereof) or the District of Columbia shall be deemed to be material)) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made ~~hereunder. Except~~ hereunder (in each case of clauses (i) and (ii) above, excluding allocated costs of in-house counsel and, in the case of any expenses incurred in connection with the matters described in clause (b) of this Section, subject to the ~~extent required to be paid~~ limitations set forth in such clause on the ~~Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth~~ Borrower’s obligation to pay such ~~expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request~~expenses). (b) The Borrower shall indemnify ~~each Arranger~~the Lead Lender, the Administrative ~~Agent and~~ Agent, each ~~Lender,~~ Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented and invoiced out-of-pocket fees, disbursements and other charges of one counsel to all ~~Indemnitees~~ Indemnitees, taken as a ~~whole~~ whole, and, if reasonably necessary, one local counsel in any relevant jurisdiction to all the Administrative Agent and one counsel to all other Indemnitees, taken as a ~~whole~~ whole, which may include a single special counsel acting in multiple jurisdictions, and solely in the case of an actual or perceived conflict of ~~interest~~interest where any affected Indemnitee notifies the Borrower of such conflict and thereafter retains its own counsel, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction)~~, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by Holdings, the Borrower, any of its ~~Restricted Subsidiaries~~ subsidiaries or any other ~~Loan Party or any~~ Environmental Liability related to Holdings, the Borrower, any of its ~~Restricted Subsidiaries or any other Loan Party~~ subsidiaries and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); ~~provided~~ provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (iA) is determined by a final and 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 its Related Parties or, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from any such Person’s material breach of the Loan Documents or (iiB) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent or any Arranger~~Agent, acting in its capacity as the Administrative ~~Agent or as an Arranger~~Agent) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee ~~for any fees, expenses, or damages~~ to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this ~~paragraph~~ clause (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses ~~in reasonable detail~~summary form, and if requested together with reasonable backup documentation supporting the relevant reimbursement request. This Section ~~9.03(b)~~ 9.03 shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any claim, litigation, investigation or proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any claim, litigation, investigation or proceeding is settled with the written consent of the Borrower, or if there is a ~~final~~ judgment by a court of competent jurisdiction against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such claim, litigation, investigation or proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Cano Health, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger, the Administrative~~ Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower or any other Loan Party and except as otherwise provided in a separate writing between the ~~Borrower,~~ Borrower or the relevant ~~Arranger and/or the Administrative~~ Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by each Issuing Bank in connection with the ~~Administrative Agent~~issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Agents, the ~~Arrangers~~ Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, (x) to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one firm of outside counsel to all such Persons taken as a whole and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of Persons, and (y) if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole~~whole and, solely in the case of an actual or potential conflict of interest, one additional local counsel to each similarly situated group of Persons, in each such relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each ~~Arranger~~Agent, each Issuing Bank, the ~~Administrative Agent~~ Swingline Lender and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole, and (y) one additional local counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)) or (iv) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or LEGAL_US_E # 159035042.9 operated by any Loan Party or the Restricted Subsidiaries, or any Environmental Liability of any Loan Party or the Restricted Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent a final and non-appealable judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against ~~the Administrative Agent or~~ any ~~Arranger~~Agent, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the Sponsors, the Borrower or any of ~~its Affiliates~~their respective Affiliates or Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof, as determined by a final non-appealable judgment of a court of competent jurisdiction. All amounts due under this ~~paragraph~~ clause (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. This ~~Section 9.03(b~~clause (b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, ~~damages or liabilities in respect of a~~ damages, etc. arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, ~~delayed~~ conditioned or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower ~~agrees~~ agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Victory Capital Holdings, Inc.)

Expenses; Indemnity. (a) ~~Subject~~ The Borrower agrees to ~~Section 9.05(f), the Borrower shall~~ pay (i) if the Effective Date occurs, all reasonable and documented out-of-pocket expenses ~~incurred by each Arranger, the Administrative Agent and their respective Affiliates~~ (but limited, ~~in the case of~~ as to legal fees and expenses, to those of White & Case LLP, counsel for the ~~actual reasonable~~ Agents and ~~documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons~~ the Arrangers taken as a ~~whole~~ whole, and, if reasonably necessary, of one local counsel in any relevant ~~jurisdiction to all such Persons~~material jurisdiction) incurred by the Arrangers and the Agents, ~~taken as a whole)~~ WEIL:\96480003\20\34471.0013 in connection with the ~~syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery~~ preparation and administration of this Agreement and the other Loan Documents ~~and any related documentation~~or, ~~including~~ except as may be otherwise agreed in writing, in connection with any ~~amendment~~amendments, ~~modification~~ modifications or ~~waiver~~ waivers of ~~any provision of any Loan Document~~ the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated ~~thereby are~~ shall be consummated, but ~~only~~ solely to the extent the preparation of ~~any such~~ the relevant amendment, modification or waiver ~~was~~ has been requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses ~~incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates~~ (but limited, ~~in the case of~~ as to legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees~~one counsel for all such Persons taken as a whole, ~~disbursements and other charges~~ and, if reasonably necessary, of one ~~firm of outside~~ local counsel to all such Persons taken as a whole ~~and, if necessary, of one local counsel~~ in any relevant ~~jurisdiction to all such Persons~~material jurisdiction) incurred by the Agents, ~~taken as a whole)~~ any Issuing Bank, any Swingline Lender or any Lender in connection with the ~~enforcement, collection~~ enforcement or protection of ~~their respective~~ its rights or remedies in connection with this Agreement and the other Loan ~~Documents, including their respective rights under this Section,~~ Documents or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower ~~shall~~ agrees to indemnify each Arranger, the Administrative ~~Agent and~~ Agent, the Collateral Agent, each Lender, each Issuing Bank, each Swingline Lender and each Related Party of any of the foregoing Persons and their successors and permitted assigns (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all ~~losses~~costs, ~~claims, damages and liabilities~~ expenses (~~but limited, in the case of legal fees and expenses, to the actual~~ including reasonable and documented fees and out-of-pocket ~~fees,~~ disbursements and other charges of one primary counsel to ~~all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in~~ the ~~case of an actual or perceived conflict of interest, (x) one additional counsel to all affected~~ Indemnitees, taken as a whole, ~~and~~ and, if reasonably necessary, of one local counsel in any relevant material jurisdiction; provided that if (yi) one ~~additional local~~ or more Indemnitees shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to one or more other Indemnitees or (ii) the representation of the Indemnitees (or any portion thereof) by the same counsel would be inappropriate due to actual or potential differing interests between them, then such expenses shall include the reasonable and documented fees and out-of-pocket disbursements and other charges of one separate counsel to ~~all affected~~ such Indemnitees, taken as a whole, in each relevant material jurisdiction), ~~incurred by or asserted against any~~ and liabilities of such Indemnitee arising out ~~of,~~ of or in connection ~~with, or as a result of~~ with (i) the execution or delivery of ~~the~~ this Agreement or any other Loan ~~Documents~~ Document or any agreement or instrument contemplated thereby, the performance by the parties ~~hereto~~ thereto of their respective obligations thereunder or the consummation of the Transactions ~~or any~~ and the other transactions contemplated ~~hereby or~~ thereby ~~and/or~~ (including the ~~enforcement~~ syndication of the ~~Loan Documents~~Credit Facilities), (ii) the use of the proceeds of the ~~Loans~~Loans or issuance of Letters of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether ~~based on contract, tort~~ or ~~any other theory and regardless of whether~~ not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)) or (iv) any actual or alleged presence or Release of Hazardous Materials on any property currently or formerly owned or operated by the Borrower or any of the subsidiaries, or any liability under Environmental Laws related in any way to the Borrower or the subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that ~~any~~ such ~~loss~~costs, ~~claim, damage,~~ expenses or ~~liability~~ liabilities (ix) is are determined by a court of competent jurisdiction in a final and non-appealable judgment ~~of a court of competent jurisdiction~~ to have resulted from the gross negligence, bad ~~faith~~ faith, fraud or willful misconduct of such Indemnitee (or ~~such Person’s material~~ its Related Parties) or breach of its (or its Related Parties’) obligations hereunder or under the other Loan ~~Documents~~ Documents, (y) relate to the presence or ~~(ii) arises out~~ Release of Hazardous Materials that first occur at any ~~claim, litigation, investigation or proceeding brought~~ property owned by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any subsidiary after such property is transferred to any Indemnitee or its successors or assigns by foreclosure, deed-in-lieu of ~~its~~ foreclosure or similar transfer or (z) resulted from any dispute solely among Indemnitees and not involving the Borrower, the Sponsors or their respective Affiliates. ~~Each~~ The Borrower shall have no obligation to reimburse any Indemnitee ~~shall be obligated~~ for fees and expenses unless such Indemnitee provides the Borrower with an undertaking in which such Indemnitee agrees to refund or and return any and all amounts paid by the Borrower ~~pursuant to this Section 9.03(b)~~ to such Indemnitee to the extent any of the foregoing items in clauses (x) through (z) occurs. Notwithstanding the foregoing, this Section 9.05 shall not apply to Tax matters, which shall be governed exclusively by Section 2.21. (c) To the extent that the Borrower fails to pay any amount required to be paid by it to any Arrangers, the Administrative Agent, the Collateral Agent, any Issuing Bank, any Swingline Lender or any other Indemnitee related thereto under paragraph (a) or (b) of this Section 9.05 (and without limiting its obligation to do so), each Lender (other than, in the case of the Issuing Banks and the Swingline Lenders, any Term Lender) severally agrees to pay to such Arranger, the Administrative Agent, the Collateral Agent, any Issuing Bank, any Swingline Lender or such related Indemnitee, such Lender’s pro rata share (determined as of the time that the WEIL:\96480003\20\34471.0013 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 an Arranger, the Administrative Agent, the Collateral Agent, any Issuing Bank, any Swingline Lender or a related Indemnitee in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based on its share of the sum of the Aggregate Revolving Credit Exposure, outstanding Term Loans, Unused Revolving Credit Commitments and Other Term Loan Commitments at the time. (d) To the extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, any claim against any other party hereto, any Indemnitee or any of their respective Affiliates, on any theory of liability, for ~~any fees~~special, ~~expenses~~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 or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided that such waiver of special, indirect, consequential or punitive damages shall not otherwise limit the indemnification obligations of the Loan Parties under this Section 9.05 to the extent such special, indirect, consequential or punitive damages are included in any third party claim in connection with which such Indemnitee is ~~not~~ otherwise entitled to ~~payment thereof in accordance with~~ indemnification hereunder. (e) The provisions of this Section 9.05 shall survive the ~~terms hereof~~expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, 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 Collateral Agent, any Lender or the Issuing Banks. All amounts due under this ~~paragraph (b)~~ Section 9.05 shall be payable ~~by the Borrower~~ within 30 days ~~(x)~~ after receipt ~~by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower~~ of an invoice relating thereto setting forth such ~~costs and expenses~~ amounts in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Ceridian HCM Holding Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the Parent Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans ~~made hereunder~~made. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Existing Credit Agreement Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by ~~the~~ any Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to ~~the~~ any Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of ~~the~~ Holdings, any Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Parent Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt ~~by the Borrower~~ of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to ~~Taxes other than any~~ Taxes, except for Taxes that represent losses, ~~claims,~~ claims or damages ~~or liabilities in respect of a~~ arising from any non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any proceeding is settled with the relevant Borrower’s written ~~consent of the Borrower~~consent, or if there is a final non-appealable judgment of a court of competent jurisdiction against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses, but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Documentation Agent, each Issuing Bank, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrowers, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of the Sponsor, Holdings, Intermediate Holdings, the Lead Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the Lead Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Lead Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, ~~delayed~~ conditioned or ~~conditioned~~delayed), but if any proceeding is settled with ~~the~~ such Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (Hillman Companies Inc)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger~~Principal Investor, the Administrative ~~Agent~~ Agent, the Arranger and the Principal Investor Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with ~~the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility,~~ the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arranger, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each~~ the Administrative Agent, the Arranger, the ~~Administrative Agent~~ Principal Investor Representative, each Issuing Bank, each Lender and ~~each Lender~~their respective Affiliates and controlling Persons and the respective directors, officers, employees, members, agents, advisors and ~~each Related Party~~ other representatives, successors and assigns of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related in any way to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.Subsidiaries or

Appears in 1 contract

Samples: First Lien Credit Agreement (Ranpak Holdings Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the ~~Borrower~~ Borrowers shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a ~~whole~~ whole, and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the ~~Term Facility~~Credit Facilities, in connection with the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Administrative Borrower and except as otherwise provided in a separate writing between the Administrative Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Syneos Health, Inc.)

Expenses; Indemnity. 10.14.1 The Loan Parties, jointly and severally, agree (a) ~~Subject~~ to ~~Section 9.05(f~~indemnify and hold harmless the Lenders, their Affiliates and their officers, directors, employees, agents, advisors, controlling persons, members and successors and assigns (each, an “Indemnified Person” and, in the case of CS Cayman and Citi, any such other Indemnified Persons related to CS Cayman or Citi shall be referred to as a “Related Party” of CS Cayman or Citi)), ~~the Borrower shall pay~~ within 30 days of a written demand therefor, together with backup documentation supporting such indemnity request (i) subject to any confidentiality, legal or regulatory restrictions and attorney-client privilege), from and against any and all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses ~~incurred by each Arranger~~(provided that legal fees, ~~the Administrative Agent~~ disbursements and ~~their respective Affiliates (but limited, in the case of legal fees and expenses,~~ other charges will be limited to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ fees, disbursements and other charges of (i) one ~~firm of outside~~ counsel to ~~all such~~ the Indemnified Persons taken as a ~~whole and~~whole, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in ~~any~~ each relevant jurisdiction to ~~all Indemnitees,~~ the Indemnified Persons taken as a whole and ~~solely~~ (iii) in the case of an any actual or perceived conflict of interest, (xafter notification by the affected person(s) and consultation with the Loan Parties, one additional counsel and, if necessary, one additional local counsel in each relevant jurisdiction to ~~all~~ the affected ~~Indemnitees,~~ Indemnified Persons taken as a whole~~, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction~~), ~~incurred by~~ joint or ~~asserted against~~ several, to which any ~~Indemnitee~~ such Indemnified Person may become subject arising out ~~of,~~ of or in connection ~~with, or as a result of (i)~~ with the ~~execution or delivery of the Loan Documents~~ Facility or any ~~agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions~~ related transaction or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the ~~foregoing~~foregoing (each, ~~whether based on contract~~a “Proceeding”), ~~tort or any other theory and~~ regardless of whether any ~~Indemnitee~~ such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a third party or by STORE Capital, the ~~Borrower~~Company, ~~any other Loan Party~~ the Borrowers or any of their respective ~~Affiliates~~affiliates)~~; provided that such indemnity shall not~~, ~~as to any Indemnitee, be available~~ in each case except to the extent ~~that any~~ such loss, claim, damage, liability or ~~liability~~ expense (ix) arises from a dispute that does not involve any action or omission by the Loan Parties or any of the Loan Parties’ affiliates and is solely among the Indemnified Persons (other than any claims against an Indemnified Person in its capacity as an Administrative Agent), (y) is ~~determined by~~ found in a ~~final and~~ final, non-appealable judgment of by a court of competent jurisdiction to have resulted from the bad faith, gross ~~negligence, bad faith~~ negligence or willful misconduct of such ~~Indemnitee~~ Indemnified Person or ~~such~~ any of its Related Parties acting at the direction of CS Cayman, Citi or their controlled Affiliates (provided that any Related Party not acting at the direction of CS Cayman or Citi, as applicable, so found to have caused the loss due to its bad faith, gross negligence or willful misconduct shall not be an Indemnified Person’s ) or a material breach by such Indemnified Person or any of its Related Parties of its obligations under the Loan Documents or (iiz) ~~arises out of~~ any ~~claim, litigation, investigation or proceeding brought~~ settlement entered into by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected Indemnified Person without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee applicable Loan Party (which consent shall not be unreasonably withheld, conditioned or delayed) and (b) to reimburse the Administrative Agent, CS Cayman in its capacity as a Lender and Citi in its capacity as a Lender under the Loan Documents from time to time, within thirty (30) days of presentation of a summary statement therefor together with supporting detail and documentation reasonably requested by a Loan Party, for all reasonable and documented out-of-pocket expenses (including, but not limited to, subject to the provisos below, such expenses related to CS Cayman’s and Citi’s due diligence investigation, appraisals, consultants’ fees, syndication expenses, travel expenses and fees, disbursements and other charges of counsel)~~, effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless~~ ; provided that (i) ~~such settlement includes an unconditional release~~ fees, disbursements and other charges of ~~such Indemnitee from all liability or claims that are~~ counsel will be limited to the ~~subject matter~~ reasonable fees and documented out-of-pocket expenses of ~~such proceeding~~ Dentons US LLP and, if necessary, of one local counsel in each relevant material jurisdiction and (ii) in the case of any appraisers (other than an Approved Appraisal Firm) and consultants, such ~~settlement~~ expense reimbursement obligations shall be limited solely to appraisers or consultants approved in writing by the applicable Loan Party (such approval not to be unreasonably withheld, conditioned or delayed), in each case, incurred in connection with the Loan and the preparation, negotiation and enforcement of the Loan Documents and any ancillary documents and security arrangements in connection therewith; provided, further, no Loan Party shall be required to reimburse any amounts under this clause (b) in the event the Closing Date does not ~~include~~ occur, unless the Company Termination Fee or the Parent Termination Fee (each as defined in the Acquisition Agreement) is required to be paid in connection with the termination of the Acquisition Agreement. 10.14.2 Notwithstanding any ~~statement as~~ other provision of this Agreement, no Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (whether direct or indirect, in contract or tort or otherwise) in connection with its activities related to the Loan or in connection with this Loan Documents or any ~~admission~~ transactions contemplated thereby. 10.14.3 Notwithstanding anything herein to the contrary, none of ~~fault~~ the Credit Parties, the Permitted Holders, any other direct or ~~culpability~~indirect investors and prospective investors in the Equity Owner or any of their respective affiliates shall be liable for any special, indirect, consequential or punitive damages (whether direct or indirect, in contract or tort or otherwise) arising out of, related to or in connection with, the Loan, this Agreement or the Loan Documents; provided that nothing contained in this sentence shall limit the Loan Parties’ indemnification and reimbursement obligations under the immediately preceding paragraph to the extent such special, indirect, consequential or punitive damages are included in any third party claim with respect to which such Indemnified Person is entitled to indemnification under the Loan Documents. 10.14.4 The parties acknowledge and agree that this Section 10.14 shall survive the resignation or removal of any Lender, the Administrative Agent, the Payment Agent, the Account Bank or the Collateral Agent, or the termination or discharge of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (STORE CAPITAL Corp)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. ~~Except~~ Other than to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail~~, together with backup documentation supporting the relevant reimbursement request~~. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing ~~Persons~~ Persons, in each case, other than Disqualified Institutions (each such ~~Person being called~~ Person, together with their successors and assigns, an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities to which such Indemnitee may become subject arising out of or in connection with (i) the preparation, execution, delivery or administration of the Loan Documents or any agreement or instrument contemplated thereby or the syndication of the Term Facility, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any currently or formerly owned, leased or operated real property or facility, or any Environmental Liability or Environmental Claim related in any way to any Loan Party or any of their respective subsidiaries, (iv) any action taken in connection with this Agreement, including, but not limited to, the payment of principal, interest and fees or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (a “Proceeding”), regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates, and to reimburse each Indemnitee within 30 days following written demand therefor (together with customary backup documentation in reasonable detail supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending a Proceeding (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest where an Indemnitee informs the Borrower of such conflict, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee 151 arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)result; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against ~~another Indemnitee~~ one or more other Indemnitees (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereoftheir respective subsidiaries. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with customary backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Agreement (Daseke, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall jointly and severally pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-~~of-~~of pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, negotiation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole, and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole and (y) one additional local counsel in each appropriate jurisdiction to all such affected Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall jointly and severally indemnify each ~~Arranger,~~ of the Administrative ~~Agent and~~ Agent, Arrangers, Lenders, each Issuing Bank, Swingline Lender, their respective affiliates and the officers, directors, employees, advisors, agents, controlling persons and members of each ~~Related Party of any~~ of the foregoing ~~Persons~~ (~~each such Person being called~~ each, an “~~Indemnitee~~Indemnified Person”) ~~against, and hold each Indemnitee harmless from, any and all~~ for losses, claims, ~~damages and~~ damages, liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee expenses arising out ~~of,~~ of or in connection ~~with,~~ with or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by ~~the~~ Holdings, any Borrower, any of ~~its~~ their Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to ~~the~~ Holdings, any Borrower, any of ~~its~~ their Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or other proceeding relating to any of the foregoing, whether based on contract, tort or any other theory ~~and~~ (regardless of whether ~~any Indemnitee~~ such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a the equity holders or creditors of Holdings or any Borrower or any other third party or by ~~the~~ Holdings, any Borrower, any other Loan Party or any of their respective Affiliates), or to the actual or alleged Release or presence of Hazardous Materials on, at, under, or from any property currently or formerly owned or operated by Holdings, any Borrower or any Restricted Subsidiary; provided that ~~such indemnity shall not~~no Indemnified Person will be indemnified for (A) any cost, ~~as to any Indemnitee, be available to the extent that any such loss, claim, damage,~~ expense or liability (i) is to the extent determined by ~~a final and non-appealable judgment of~~ a court of competent jurisdiction in a final, non appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnified Person or any of such Indemnified Person’s Related Parties, (ii) arising from a material breach of ~~the~~ such Indemnified Person’s (or any of its Related Parties’) obligations under any Loan ~~Documents~~ Document, as determined by a court of competent jurisdiction in a final, non-appealable judgment or (iiiii) ~~arises out of~~ arising from any claim, ~~litigation~~actions, ~~investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim~~suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of Holdings, any Borrower or any of their Affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Administrative ~~Agent or~~ Agent, any Arranger, ~~acting~~ any Issuing Bank or any Swingline Lender in its capacity as ~~the Administrative Agent~~ such), or ~~as an Arranger~~(B) ~~that does not involve~~ any ~~act or omission of the Borrower~~ settlement entered into by such Indemnified Person (or any of its ~~Affiliates. Each Indemnitee shall be obligated to refund~~ affiliates, successors, assigns or ~~return any and all amounts paid by~~ Related Parties) without the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the Representative’s written consent ~~of the Borrower~~ (~~which~~ such consent ~~shall~~ not to be unreasonably withheld, delayed or conditioned), but if ~~any proceeding is~~ settled with the Borrower Representative’s written ~~consent of the Borrower~~consent, or if there is a final judgment against ~~any Indemnitee~~ an Indemnified Person in any such proceeding, the ~~Borrower agrees to~~ Borrowers shall jointly and severally indemnify and hold harmless each ~~Indemnitee~~ Indemnified Person to the extent and in the manner set forth above~~. The Borrower shall not~~; provided, ~~without~~ however, that the ~~prior written consent~~ foregoing indemnity will apply to any such settlement in the event that the Borrowers were offered the ability to assume the defense of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims action that ~~are~~ was the subject matter of such ~~proceeding~~ settlement and ~~(ii)~~ elected not to assume such ~~settlement does not include any statement as to any admission of fault or culpability~~defense.

Appears in 1 contract

Samples: Credit Agreement (Indivior PLC)

Expenses; Indemnity. ~~(a)~~ Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans ~~made hereunder~~made. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) business days prior thereto), all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole (and solely in the case of a conflict of interest, (A) one additional counsel to all affected Persons, taken as a whole, and (B) one additional local counsel in any such jurisdiction to all affected Persons, taken as a whole), and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of any such loss, claim, damage and/or liability constituting legal fees and ~~expenses,~~ expenses to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of ~~an actual or perceived~~ a conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third party or by or against the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, WEIL:\98124242\16\45453.0004 WEIL:\98997375\7\45453.0004 damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s Related Party’s) material breach of the Loan Documents (other than, with the written consent of the Borrower in its sole discretion, the Administrative Agent, in its capacity as such, in respect of obligations not owed to the Loan Parties) or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. ~~All amounts~~ Any amount due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (First Watch Restaurant Group, Inc.)

Expenses; Indemnity. (a) ~~Subject~~ The Borrower agrees to ~~Section 9.05(f~~pay, within 30 days of written demand therefor (including documentation reasonably supporting such request), ~~the Borrower shall pay~~ (i) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by ~~each Arranger~~the Administrative Agent, the Collateral Agent and the Arrangers in connection with the preparation of this Agreement and the other Loan Documents, or by the Administrative Agent or the Collateral Agent in connection with the administration of this Agreement and ~~their respective Affiliates~~ any amendments, modifications or waivers of the provisions hereof or thereof (~~but~~ limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable ~~and documented out-of-pocket~~ fees, charges and disbursements of a single primary counsel for the Administrative Agent and ~~other charges of one firm of outside~~ the Arrangers and a single primary counsel ~~to all such Persons taken as a whole~~ for the Collateral Agent, and, if necessary, the reasonable fees, charges and disbursements of one local counsel in ~~any~~ each relevant material jurisdiction to and/or a single firm of gaming counsel, in each case, for all such ~~Persons~~persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses (including Other Taxes) incurred by the ~~Administrative Agent~~Agents, the ~~Arrangers~~ L/C Issuers 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 ~~Lenders or any~~ Letters of ~~their respective Affiliates~~ Credit issued hereunder (~~but~~ excluding allocated costs of in-house counsel and limited, (i) in the case of legal fees and expenses, to the ~~actual~~ reasonable ~~and documented out-of-pocket~~ fees, charges and disbursements ~~and other charges~~ of ~~one firm of outside~~ a single primary counsel to for all such ~~Persons~~ persons, taken as a whole (except that the Collateral Agent shall be entitled to its own single independent counsel), and, if necessary, the reasonable fees, charges and disbursements of one local counsel in ~~any~~ each relevant material jurisdiction to and/or gaming counsel for all such ~~Persons~~persons, taken as a ~~whole~~whole (and, in the event of any actual or perceived conflict of interest where such person affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel with the Borrower’s prior written consent (not to be unreasonably withheld), of another single firm of counsel for each group of similarly situated persons) and (ii) in ~~connection with~~ the ~~enforcement~~case of fees or expenses of any other advisor or consultant, ~~collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except~~ solely to the extent ~~required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by~~ the Borrower ~~within 30 days~~ has consented to the retention of ~~receipt by the Borrower of an invoice setting forth~~ such ~~expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request~~person). (b) The Borrower ~~shall~~ agrees to indemnify ~~each Arranger~~the Administrative Agent, the ~~Administrative Agent and~~ Collateral Agent, the Arrangers, each L/C Issuer, each Lender, each of their respective Affiliates, and each ~~Related Party~~ of ~~any of the foregoing Persons~~ their respective directors, partners, officers, employees, agents, trustees and advisors (each such ~~Person~~ person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses, claims, ~~damages~~ damages, liabilities and ~~liabilities~~ related expenses, including reasonable counsel fees, charges and disbursements (~~but limited,~~ limited in the case of legal fees ~~and expenses,~~ to the ~~actual~~ reasonable and documented out-of-pocket ~~fees~~legal expenses incurred in connection with investigating or defending any of the items in clauses (i) through (v) below, ~~disbursements~~ and ~~other charges~~ excluding the allocated costs of in house counsel and limited to not more than one counsel to for all ~~Indemnitees~~ such Indemnitees, taken as a ~~whole~~ whole, and, if ~~reasonably~~ necessary, ~~one~~ a single local counsel in ~~any~~ each relevant material jurisdiction to and/or a single firm of gaming counsel, in each case, for all such Indemnitees, taken as a whole ~~and solely~~ (and, in the case of an actual or perceived conflict of ~~interest~~interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel with the Borrower’s prior written consent (not to be unreasonably withheld or delayed), of another firm of counsel (~~x) one additional counsel to all affected Indemnitees, taken as a whole,~~ and ~~(y) one additional~~ local counsel ~~to all affected Indemnitees, taken as a whole~~and/or gaming counsel, in each ~~relevant jurisdiction~~case, as applicable) for each group of similarly situated Indemnitees)), and, in the case of fees or expenses with respect to any other advisor or consultant, limited solely to the extent the Borrower has consented to the retention of such person, incurred by or asserted against any Indemnitee arising out of, in ~~connection~~ any way connected with, or as a result of (i) the execution or delivery of ~~the~~ this Agreement or any other Loan ~~Documents~~ 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 ~~or any~~ and the other transactions contemplated ~~hereby or thereby and/or the enforcement of the Loan Documents~~hereby, (ii) the use of the proceeds of the ~~Loans~~Loans or the use of any Letter of Credit, (iii) any ~~actual~~ violation of or ~~alleged Release or presence of Hazardous Materials on, at,~~ liability under ~~or from any property currently or formerly owned or leased~~ Environmental Laws by the ~~Borrower, any of its Restricted Subsidiaries~~ Borrower or any ~~other Loan Party or any Environmental Liability related to the Borrower~~Subsidiary, ~~any of its Restricted Subsidiaries or any other Loan Party and/or~~ (iv) any actual or ~~prospective~~ alleged presence, Release or threatened Release of or exposure to Hazardous Materials at, under, on, from or to any property owned, leased or operated by the Borrower or any Subsidiary or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether ~~based on contract, tort~~ or ~~any other theory and regardless of whether~~ not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower, any other Loan Party~~ Borrower or any of ~~their respective~~ its subsidiaries or Affiliates); ~~provided~~ provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that ~~any~~ such ~~loss~~losses, ~~claim~~claims, ~~damage~~damages, liabilities or ~~liability~~ related expenses (ix) is are determined by a ~~final and~~ 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 ~~such Person’s~~ any of its Related Parties or (2) any material breach of any Loan Document, the ~~Loan Documents~~ Commitment Letter or the Fee Letter by such Indemnitee or any of its Related Parties or (iiy) ~~arises out of~~ arose from 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 ~~such~~ an Indemnitee against another Indemnitee (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding ~~that is brought by~~ against any Agent, Arranger or ~~against the Administrative Agent or any Arranger, acting~~ L/C Issuer in its capacity as ~~the Administrative Agent or~~ such); provided further, that such indemnity shall not, as ~~an Arranger) that does not involve~~ to any ~~act or omission of the Borrower~~ Indemnitee, be available with respect to any settlement entered into by such Indemnitee or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected Related Parties without the Borrower’s written consent ~~of the Borrower~~ (~~which~~ such consent ~~shall~~ not to be unreasonably withheld, delayed or conditioned); provided further, ~~but if~~ that such indemnity shall not, as to any ~~proceeding is settled~~ Indemnitee, be available with ~~the written consent~~ respect to any expenses of the ~~Borrower, or if there is a final judgment against any Indemnitee~~ type referred to in ~~any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee~~ Section 9.05(a) except to the extent such expenses would otherwise be of the type referred to in this Section 9.05(b). None of the Indemnitees (or any of their respective Affiliates) shall be responsible or liable to the Borrower or any of its 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 ~~the manner set forth above. The Borrower shall not, without the prior written consent~~ full force and effect regardless of the ~~affected Indemnitee~~ 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 Arranger, any L/C Issuer or any Lender. All amounts due under this Section 9.05 shall be payable within fifteen (15) days after 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 ~~consent~~ shall not be ~~unreasonably withheld, conditioned or delayed), effect any settlement~~ duplicative of any ~~pending~~ amounts paid pursuant to Section 2.17, this Section 9.05 shall not apply to Taxes, except Taxes that represent damages or ~~threatened proceeding~~ losses resulting from a non-Tax claim or non-Tax expense. (d) To the fullest extent permitted by applicable law, each of the parties hereto shall not assert, and hereby waives, any claim against any other party hereto or any of their respective Related Parties, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in ~~respect~~ 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 Loan or Letter of Credit or the use of the proceeds thereof; provided, that nothing contained in this sentence shall limit the Borrower’s indemnification obligations to the extent set forth hereinabove to the extent such special, indirect, consequential or punitive damages are included in any third party claim in connection with which ~~indemnity could have been sought hereunder by~~ such Indemnitee ~~unless~~ is entitled to indemnification hereunder. 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. (ie) ~~such settlement includes an unconditional release~~ The agreements in this Section 9.05 shall survive the resignation of ~~such Indemnitee from~~ the Administrative Agent, the Collateral Agent, any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all ~~liability or claims that are~~ the ~~subject matter~~ other Obligations and the termination of ~~such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability~~this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Caesars Entertainment, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger, the Administrative~~ Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower or any other Loan Party and except as otherwise provided in a separate writing between the ~~Borrower,~~ Borrower or the relevant ~~Arranger and/or the Administrative~~ Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by each Issuing Bank in connection with the ~~Administrative Agent~~issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Agents, the ~~Arrangers~~ Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, (x) to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one firm of outside counsel to all such Persons taken as a whole and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of Persons, and (y) if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole~~whole and, solely in the case of an actual or potential conflict of interest, one additional local counsel to each similarly situated group of Persons, in each such relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each ~~Arranger~~Agent, ~~the Administrative Agent~~ each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole, and (y) one additional local counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)) or (iv) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by any Loan Party or the Restricted Subsidiaries, or any Environmental Liability of any Loan Party or the Restricted Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent a final and non-appealable judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against ~~the Administrative Agent or~~ any ~~Arranger~~Agent, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the Sponsors, the Borrower or any of ~~its Affiliates~~their respective affiliates or Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof, as determined by a final non-appealable judgment of a court of competent jurisdiction. All amounts due under this ~~paragraph~~ clause (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. This ~~Section 9.03(b~~clause (b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, ~~damages or liabilities in respect of a~~ damages, etc. arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, ~~delayed~~ conditioned or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower ~~agrees~~ agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Victory Capital Holdings, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided separately in ~~a separate~~ writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made hereunder. Except to the extent required to be paid on the ~~Closing Date~~Third Amendment Effective Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty (30) days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a ~~separate~~ separateseparately in writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) business daysBusiness Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days of receipt by the Lead Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (PQ Group Holdings Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger,~~ the Administrative Agent and ~~their respective~~ its Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with ~~the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility,~~ the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the ~~Borrower, the relevant Arranger~~ Borrower and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative ~~Agent, the Arrangers~~ Agent or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole, and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each Arranger,~~ the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and ~~expenses~~expenses constituting any such losses, claims, damages and/or liabilities), to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent ~~or any Arranger,~~ acting in its capacity as the Administrative ~~Agent or as an Arranger~~Agent) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. ~~All amounts~~ Any amount due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Sovos Brands, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the ~~Borrower~~ Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the ~~Borrower~~Borrowers, the ~~relevant Arranger~~ Arrangers and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the ~~Closing~~ Restatement Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify ~~each Arranger~~the Arrangers, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Restatement Date Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by ~~the~~ any Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to ~~the~~ any Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ any Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the ~~Borrower~~ Borrowers or any of ~~its Affiliates~~their subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the ~~Borrower~~ Borrowers of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement of any proceeding effected without the written consent of the ~~Borrower~~ Borrowers (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the ~~Borrower~~Borrowers, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers jointly and severally agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Nuvei Corp)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent)~~, but excluding solely~~ ; provided that any such expenses incurred in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date ~~(with any expense reimbursement in connection therewith to~~ shall be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~October 31, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date)~~2017, by and ~~among~~ among, the ~~Borrower, JPMCB~~ Borrower and the ~~Arrangers)~~ Arrangers and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent)~~, but excluding solely~~ ; provided that any such expenses incurred in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date ~~(with any expense reimbursement in connection therewith to~~ shall be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~October 31, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date)~~2017, by and ~~among~~ among, the ~~Borrower, JPMCB~~ Borrower and the ~~Arrangers)~~ Closing Date Arrangers and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and Table of Contents liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)

Expenses; Indemnity. (a) ~~Subject~~ The Borrower agrees to ~~Section 9.05(f), the Borrower shall~~ pay (i) if the Effective Date occurs, all reasonable and documented out-of-pocket expenses ~~incurred by each Arranger, the Administrative Agent and their respective Affiliates~~ (but limited, ~~in the case of~~ as to legal fees and expenses, to those of White & Case LLP, counsel for the ~~actual reasonable~~ Agents, the Arrangers and ~~documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons~~ the Documentation Agents taken as a ~~whole~~ whole, and, if reasonably necessary, of one local counsel in any relevant ~~jurisdiction to all such Persons~~material jurisdiction) incurred by the Arrangers, ~~taken as a whole)~~ the Documentation Agents and the Agents, in connection with the ~~syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery~~ preparation and administration of this Agreement and the other Loan Documents ~~and any related documentation~~or, ~~including~~ except as may be otherwise agreed in writing, in connection with any ~~amendment~~amendments, ~~modification~~ modifications or ~~waiver~~ waivers of ~~any provision of any Loan Document~~ the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated ~~thereby are~~ shall be consummated, but ~~only~~ solely to the extent the preparation of ~~any such~~ the relevant amendment, modification or waiver ~~was~~ has been requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses ~~incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates~~ (but limited, ~~in the case of~~ as to legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees~~one counsel for all such Persons taken as a whole, ~~disbursements and other charges~~ and, if reasonably necessary, of one ~~firm of outside~~ local counsel to all such Persons taken as a whole ~~and, if necessary, of one local counsel~~ in any relevant ~~jurisdiction to all such Persons~~material jurisdiction) incurred by the Agents, ~~taken as a whole)~~ any Issuing Bank, any Swingline Lender or any Lender in connection with the ~~enforcement, collection~~ enforcement or protection of ~~their respective~~ its rights or remedies in connection with this Agreement and the other Loan ~~Documents, including their respective rights under this Section,~~ Documents or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower ~~shall~~ agrees to indemnify each Arranger, the Administrative ~~Agent and~~ Agent, the Collateral Agent, each Lender, each Issuing Bank, each Swingline Lender and each Related Party of any of the foregoing Persons and their successors and permitted assigns (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any and all ~~losses~~costs, ~~claims, damages and liabilities~~ expenses (but limited, ~~in the case of~~ as to legal fees and expenses, to the ~~actual~~ reasonable and documented fees and out-of-pocket ~~fees,~~ disbursements and other charges of one primary counsel to ~~all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in~~ the ~~case of an actual or perceived conflict of interest, (x) one additional counsel to all affected~~ Indemnitees, taken as a whole, ~~and~~ and, if reasonably necessary, of one local counsel in any relevant material jurisdiction; provided, that if (yi) one ~~additional local~~ or more Indemnitees shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to one or more other Indemnitees or (ii) the representation of the Indemnitees (or any portion thereof) by the same counsel would be inappropriate due to actual or potential differing interests between them, then such expenses shall include the reasonable and documented fees and out-of-pocket disbursements and other charges of one separate counsel to ~~all affected~~ such Indemnitees, taken as a whole, in each relevant material jurisdiction), ~~incurred by or asserted against any~~ and liabilities of such Indemnitee arising out ~~of,~~ of or in connection ~~with, or as a result of~~ with (iA) the execution or delivery of ~~the~~ this Agreement or any other Loan ~~Documents~~ Document or any agreement or instrument contemplated thereby, the performance by the parties ~~hereto~~ thereto of their respective obligations thereunder or the consummation of the Transactions ~~or any~~ and the other transactions contemplated ~~hereby or~~ thereby ~~and/or~~ (including the ~~enforcement~~ syndication of the ~~Loan Documents~~Credit Facilities), (iiB) the use of the proceeds of the ~~Loans~~Loans or issuance of Letters of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (ivC) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether ~~based on contract, tort~~ or ~~any other theory and regardless of whether~~ not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)) or (D) any actual or alleged presence or Release of Hazardous Materials on any property currently or formerly owned, leased or operated by the Borrower or any of the subsidiaries, or any liability under or relating to any Environmental Laws or relating to any Hazardous Materials related in any way to the Borrower or the subsidiaries; ~~provided~~ provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that ~~any~~ such ~~loss~~costs, ~~claim, damage,~~ expenses or ~~liability~~ liabilities (ix) is are determined by a court of competent jurisdiction in a final and non-appealable judgment ~~of a court of competent jurisdiction~~ to have resulted from the gross negligence, bad ~~faith~~ faith, fraud or willful misconduct of such Indemnitee (or ~~such Person’s~~ its Related Parties) or material breach of its (or its Related Parties’) obligations hereunder or under the other Loan ~~Documents~~ Documents, (y) relate to the presence or ~~(ii) arises out~~ Release of Hazardous Materials that first occur at any ~~claim, litigation, investigation or proceeding brought~~ property owned by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any subsidiary after such property is transferred to any Indemnitee or its successors or assigns by foreclosure, deed-in-lieu of foreclosure or similar transfer or (z) resulted from any dispute solely among Indemnitees and not involving the Borrower, or its Affiliates. ~~Each~~ The Borrower shall have no obligation to reimburse any Indemnitee ~~shall be obligated~~ for fees and expenses unless such Indemnitee provides the Borrower with an undertaking in which such Xxxxxxxxxx agrees to refund or and return any and all amounts paid by the Borrower ~~pursuant to this Section 9.03(b)~~ to such Indemnitee to the extent any of the foregoing items in clauses (x) through (z) occurs. Notwithstanding the foregoing, this Section 9.05 shall not apply to Tax matters, which shall be governed exclusively by Section 2.21. (c) To the extent that the Borrower fails to pay any amount required to be paid by it to any Arrangers, the Documentation Agents, the Administrative Agent, the Collateral Agent, any Issuing Bank, any Swingline Lender or any other Indemnitee related thereto under paragraph (a) or (b) of this Section 9.05 (and without limiting its obligation to do so), each Lender (other than, in the case of the Issuing Banks and the Swingline Lenders, any Term Lender) severally agrees to pay to such Arranger, the Administrative Agent, the Collateral Agent, any Issuing Bank, any Swingline Lender or such related Indemnitee, 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 an Arranger, the Administrative Agent, the Collateral Agent, any Issuing Bank, any Swingline Lender or a related Indemnitee in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based on its share of the sum of the Aggregate Revolving Credit Exposure, outstanding Term Loans, Unused Revolving Credit Commitments and Other Term Loan Commitments at the time. (d) To the extent permitted by applicable law, no party hereto shall assert, and each party hereto hereby waives, any claim against any other party hereto, any Indemnitee or any of their respective Affiliates, on any theory of liability, for ~~any fees~~special, ~~expenses~~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 or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided, that such waiver of special, indirect, consequential or punitive damages shall not otherwise limit the indemnification obligations of the Loan Parties under this Section 9.05 to the extent such special, indirect, consequential or punitive damages are included in any third party claim in connection with which such Indemnitee is ~~not~~ otherwise entitled to ~~payment thereof in accordance with~~ indemnification hereunder. (e) The provisions of this Section 9.05 shall survive the ~~terms hereof~~expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, 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 Collateral Agent, any Lender or the Issuing Banks. All amounts due under this ~~paragraph (b)~~ Section 9.05 shall be payable ~~by the Borrower~~ within 30 days ~~(x)~~ after receipt ~~by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower~~ of an invoice relating thereto setting forth such ~~costs and expenses~~ amounts in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Dayforce, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger~~Principal Investor, the Administrative ~~Agent~~ Agent, the Arranger and the Principal Investor Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with ~~the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility,~~ the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arranger, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each~~ the Administrative Agent, the Arranger, the ~~Administrative Agent~~ Principal Investor Representative, each Issuing Bank, each Lender and ~~each Lender~~their respective Affiliates and controlling Persons and the respective directors, officers, employees, members, agents, advisors and ~~each Related Party~~ other representatives, successors and assigns of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any ~~actual~~ Environmental Liability related in any way to the Borrower or ~~alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower,~~ any of its ~~Restricted~~ Subsidiaries or ~~any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or~~ (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Indemnitee Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s or an Indemnitee Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, the Arranger, the Principal Investor Representative or any ~~Arranger~~Issuing Bank, acting in its capacity as the Administrative ~~Agent~~ Agent, as the Arranger, as the Principal Investor Representative or as an ~~Arranger~~Issuing Bank) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. ~~This~~ Notwithstanding anything to the contrary, this Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) ~~such settlement~~ includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such ~~proceeding and~~ proceeding, (ii) includes confidentiality provisions that are customary or are reasonably satisfactory to such ~~settlement~~ Indemnitee and (iii) does not include any statement as to any admission of ~~fault~~ fault, culpability, wrongdoing or ~~culpability~~a failure to act by or on behalf of any Indemnitee (it being understood that such Indemnitee may reasonably withhold its consent to any settlement that does not comply with this sentence in any material respect).

Appears in 1 contract

Samples: First Lien Credit Agreement (Ranpak Holdings Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the ~~Borrower~~ Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each~~ the Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction (which shall include Canada) to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the ~~Term~~ Revolving Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by or otherwise approved by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the ~~Borrower~~Borrowers, the ~~relevant~~ Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers or~~ Issuing Banks, the Arranger and the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction (which shall include Canada) to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the Borrower Representative of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify ~~each~~ the Arranger, the Administrative ~~Agent and~~ Agent, each Lender, each Issuing Bank and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction (which shall include Canada) to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction (which shall include Canada) to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release by the Borrower Representative, any of its Restricted Subsidiaries or any other Loan Party or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the ~~Borrower~~Borrower Representative, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Claim or Environmental Liability related to the ~~Borrower~~Borrower Representative, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the ~~foregoing~~foregoing (a “Proceeding”), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrower Representative, any other Loan Party or any of their respective Affiliates); ~~provided~~ provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and ~~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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any ~~claim, litigation, investigation or proceeding~~ Proceeding brought by such Indemnitee against another Indemnitee (other than ~~any claim, litigation, investigation or proceeding~~ Proceeding that is brought by or against the Administrative Agent or ~~any~~ the Arranger, acting in its capacity as the Administrative Agent or as an the Arranger) that does not involve any act or omission of Holdings, the Borrower Representative or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the Borrower Representative of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower Representative of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. Notwithstanding the foregoing, no Loan Party that is a Foreign Subsidiary or a Foreign Subsidiary Holdco shall be obligated to make any payment in respect of the amount of any Revolving Loans made to a US Borrower or any other Secured Obligations of a US Loan Party. (c) The ~~Borrower~~ Borrowers shall not be liable for any settlement of any ~~proceeding~~ Proceeding effected by any Indemnitee without the written consent of the Borrower Representative (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other loss, claim, damage, liability and/or expense incurred in connection therewith, but if any ~~proceeding~~ Proceeding is settled with the written consent of the ~~Borrower~~Borrower Representative, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened ~~proceeding~~ Proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (i) ~~such settlement~~ includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such ~~proceeding~~ Proceeding and (ii) ~~such settlement~~ does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (iFit Health & Fitness Inc)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Lead Borrower shall pay (i) all reasonable and documented ~~out-of-pocket~~ outofpocket expenses incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ outofpocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided in a separate writing between the Lead Borrower, the relevant ~~Arranger~~ Arranger, the relevant Issuing Bank and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented ~~out-of-pocket~~ outofpocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ outofpocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Lead Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ outofpocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in ~~any relevant~~ each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of #94168740v7#95106251v8 the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Lead Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and ~~non-appealable~~ nonappealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s affiliates, successors, assigns or Related Parties) material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any ~~Arranger~~Arranger or Issuing Bank, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the ~~Borrower~~ Holdings, the Borrowers or any of ~~its Affiliates~~their subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Lead Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a ~~non-Tax~~ nonTax claim. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any Loan Party that is not Holdings, the Lead Borrower or any Domestic Subsidiary have any payment, reimbursement or guarantee obligations for the Lead Borrower or any Domestic Subsidiary for the payment requirements under this Section 9.03. (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Lead Borrower’s written ~~consent~~ consent, or if the Lead Borrower is offered the ability to assume the defense of the ~~Borrower~~action that was the subject matter of such settlement and elected not to assume such defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Lead Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (SB/RH Holdings, LLC)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated 146 by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses, but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the notarization of this Agreement and any subsequent acknowledgements of debt under this Agreement, the enforcement, collection or protection of their respective rights in connection with the Loan Documents, -219- #94513555v35 including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the ~~Closing Date~~Second Amendment Effective Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (Hayward Holdings, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Hillman Companies Inc)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Issuer and Holdings shall jointly and severally pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger,~~ the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the ~~syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility~~preparation, ~~the preparation~~negotiation, execution, delivery and administration of the ~~Loan~~ Notes Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any ~~Loan~~ Notes Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Issuer and except as otherwise provided in a separate writing between the ~~Borrower~~Issuer, ~~the relevant Arranger and/or~~ the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative ~~Agent, the Arrangers~~ Agent or the ~~Lenders~~ Holders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole, and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole and (y) one additional local counsel in each appropriate jurisdiction to all such affected Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the ~~Loan~~ Notes Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the ~~Loans~~ Notes made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Issuer within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (bI) The ~~Borrower~~ Issuer and Holdings shall jointly and severally indemnify each ~~Arranger,~~ of the Administrative ~~Agent~~ Agent, Holders and their respective affiliates and the officers, directors, employees, advisors, agents, controlling persons and members of each ~~Lender, and each Related Party of any~~ of the foregoing ~~Persons~~ (~~each such Person being called~~ each, an “~~Indemnitee~~Indemnified Person”) ~~against, and hold each Indemnitee harmless from, any and all~~ for losses, claims, ~~damages and~~ damages, liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee expenses arising out ~~of,~~ of or in connection ~~with,~~ with or as a result of (i) the Transactions or the execution or delivery of the ~~Loan~~ Notes Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Notes Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Notes, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by Holdings, the ~~Borrower~~Issuer, any of ~~its~~ their Restricted Subsidiaries or any other ~~Loan~~ Note Party or any Environmental Liability related to Holdings, the ~~Borrower~~Issuer, any of ~~its~~ their Restricted Subsidiaries or any other ~~Loan~~ Note Party and/or (iv) any actual or prospective claim, litigation, investigation or other proceeding relating to any of the foregoing, whether based on contract, tort or any other theory ~~and~~ (regardless of whether ~~any Indemnitee~~ such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a the equity holders or creditors of Holdings or the Issuer or any other third party or by Holdings, the ~~Borrower~~Issuer, any other ~~Loan~~ Note Party or any of their respective Affiliates)~~; provided that such indemnity shall not~~, ~~as to any Indemnitee, be available~~ or to the ~~extent~~ actual or alleged Release or presence of Hazardous Materials on, at, under, or from any property currently or formerly owned or operated by Holdings, the Issuer or any Restricted Subsidiary. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any ~~such loss~~non-Tax claim. (II) Notwithstanding anything to the contrary in clause (I) above, ~~claim~~no Indemnified Person will be indemnified under the indemnity in clause (I) above for (A) any cost, ~~damage,~~ expense or liability (i) is to the extent determined by ~~a final and non-appealable judgment of~~ a court of competent jurisdiction in a final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnified Person or any of such Indemnified Person’s Related Parties, (ii) arising from a material breach of ~~the Loan Documents~~ such Indemnified Person’s (or any of its Related Parties’) obligations under any Notes Document, as determined by a court of competent jurisdiction in a final, non-appealable judgment or (iiiii) ~~arises out of~~ arising from any claim, ~~litigation~~actions, ~~investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim~~suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of Holdings, the Issuer or any of their Affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Administrative Agent ~~or any Arranger, acting~~ in its capacity as ~~the Administrative Agent~~ such), or ~~as an Arranger~~(B) ~~that does not involve~~ any ~~act or omission of the Borrower~~ settlement entered into by such Indemnified Person (or any of its ~~Affiliates. Each Indemnitee shall be obligated to refund~~ affiliates, successors, assigns or ~~return any and all amounts paid by the Borrower pursuant to this Section 9.03(b~~Related Parties) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the Issuer’s written consent ~~of the Borrower~~ (~~which~~ such consent ~~shall~~ not to be unreasonably withheld, delayed or conditioned), but if ~~any proceeding is~~ settled with the Issuer’s written ~~consent of the Borrower~~consent, or if there is a ~~final~~ final, unappealable judgment against ~~any Indemnitee~~ an Indemnified Person in any such proceeding, the ~~Borrower agrees to~~ Issuer and Holdings shall jointly and severally indemnify and hold harmless each ~~Indemnitee~~ Indemnified Person to the extent and in the manner set forth above~~. The Borrower shall not~~; provided, ~~without~~ however, that the ~~prior written consent~~ indemnity in clause (I) above will apply to any such settlement in the event that Holdings or the Issuer were offered the ability to assume the defense of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims action that ~~are~~ was the subject matter of such ~~proceeding~~ settlement and ~~(ii)~~ elected not to assume such ~~settlement does not include any statement as to any admission of fault or culpability~~defense.

Appears in 1 contract

Samples: Note Purchase Agreement (Indivior PLC)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the ~~Borrower~~ BorrowerBorrowers shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the BorrowerBorrowers, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersBorrowerBorrowers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ BorrowerBorrowers within 30 days of receipt by the ~~Borrower~~ BorrowerBorrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ BorrowerBorrowers shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Parent Borrower of such conflict, (x) one additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the ~~foregoing~~foregoing (including any matters arising under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by ~~the~~ theany Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of ~~the~~ Holdings, theany Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ BorrowerBorrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ BorrowerBorrowers within 30 days (x) after receipt by the Parent Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Parent Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The ~~Borrower~~ BorrowerBorrowers shall not be liable for any settlement or compromise of, or the consent to the endingentry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Parent Xxxxxxxx’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower ~~agrees~~ agreesBorrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ BorrowerBorrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Bowlero Corp.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) business days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, each Issuing Bank, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrowers, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Parties or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Lead Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt ~~by the Borrower~~ of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to ~~Taxes other than any~~ Taxes, except for Taxes that represent losses, ~~claims,~~ claims or damages ~~or liabilities in respect of a~~ arising from any non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any proceeding is settled with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final non-appealable judgment of a court of competent jurisdiction against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (PQ Group Holdings Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall jointly and severally pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, negotiation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided in a separate writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole, and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole and (y) one additional local counsel in each appropriate jurisdiction to all such affected Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall jointly and severally indemnify each ~~Arranger,~~ of the Administrative ~~Agent and~~ Agent, Arrangers, Lenders, each Issuing Bank, Swingline Lender, their respective affiliates and the officers, directors, employees, advisors, agents, controlling persons and members of each ~~Related Party of any~~ of the foregoing ~~Persons~~ (~~each such Person being called~~ each, an “~~Indemnitee~~Indemnified Person”) ~~against, and hold each Indemnitee harmless from, any and all~~ for losses, claims, ~~damages and~~ damages, liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee expenses arising out ~~of,~~ of or in connection ~~with,~~ with or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by ~~the~~ Holdings, any Borrower, any of ~~its~~ their Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to ~~the~~ Holdings, any Borrower, any of ~~its~~ their Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or other proceeding relating to any of the foregoing, whether based on contract, tort or any other theory ~~and~~ (regardless of whether ~~any Indemnitee~~ such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a the equity holders or creditors of Holdings or any Borrower or any other third party or by ~~the~~ Holdings, any Borrower, any other Loan Party or any of their respective Affiliates), or to the actual or alleged Release or presence of Hazardous Materials on, at, under, or from any property currently or formerly owned or operated by Holdings, any Borrower or any Restricted Subsidiary; provided that ~~such indemnity shall not~~no Indemnified Person will be indemnified for (A) any cost, ~~as to any Indemnitee, be available to the extent that any such loss, claim, damage,~~ expense or liability (i) is to the extent determined by ~~a final and non-appealable judgment of~~ a court of competent jurisdiction in a final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnified Person or any of such Indemnified Person’s Related Parties, (ii) arising from a material breach of ~~the~~ such Indemnified Person’s (or any of its Related Parties’) obligations under any Loan ~~Documents~~ Document, as determined by a court of competent jurisdiction in a final, non-appealable judgment or (iiiii) ~~arises out of~~ arising from any claim, ~~litigation~~actions, ~~investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim~~suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of Holdings, any Borrower or any of their Affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Administrative ~~Agent or~~ Agent, any Arranger, ~~acting~~ any Issuing Bank or any Swingline Lender in its capacity as ~~the Administrative Agent~~ such), or ~~as an Arranger~~(B) ~~that does not involve~~ any ~~act or omission of the Borrower~~ settlement entered into by such Indemnified Person (or any of its ~~Affiliates. Each Indemnitee shall be obligated to refund~~ affiliates, successors, assigns or ~~return any and all amounts paid by~~ Related Parties) without the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the Representative’s written consent ~~of the Borrower~~ (~~which~~ such consent ~~shall~~ not to be unreasonably withheld, delayed or conditioned), but if ~~any proceeding is~~ settled with the Borrower Representative’s written ~~consent of the Borrower~~consent, or if there is a final judgment against ~~any Indemnitee~~ an Indemnified Person in any such proceeding, the ~~Borrower agrees to~~ Borrowers shall jointly and severally indemnify and hold harmless each ~~Indemnitee~~ Indemnified Person to the extent and in the manner set forth above~~. The Borrower shall not~~; provided, ~~without~~ however, that the ~~prior written consent~~ foregoing indemnity will apply to any such settlement in the event that the Borrowers were offered the ability to assume the defense of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims action that ~~are~~ was the subject matter of such ~~proceeding~~ settlement and ~~(ii)~~ elected not to assume such ~~settlement does not include any statement as to any admission of fault or culpability~~defense.

Appears in 1 contract

Samples: Credit Agreement (Indivior PLC)

Expenses; Indemnity. (a) Subject to Section 9.05(f), if the ~~Borrower~~ Closing Date occurs, the Issuer shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger~~Purchaser, the ~~Administrative Agent~~ Purchaser Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel ~~to all such Persons~~ for the Purchaser Representative and (y) one firm of outside counsel for the Purchasers and their respective Affiliates (taken as a ~~whole and,~~ whole) and (z) if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the ~~syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the~~ preparation, execution, delivery and administration of the ~~Loan~~ Note Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any ~~Loan~~ Note Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Issuer and except as otherwise provided in a separate writing between the ~~Borrower, the relevant Arranger~~ Issuer and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersPurchaser Representative) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the ~~Administrative Agent, the Arrangers~~ Purchaser Representative or the ~~Lenders~~ Purchasers or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (A) one firm of outside counsel to for the Purchaser Representative and, (B) one firm of outside counsel for all ~~such Persons~~ the Purchasers and their respective Affiliates (taken as a ~~whole~~ whole) and, (C) to the extent the Third Amendment Purchasers reasonably conclude that their interests are not aligned with the interests of the other Purchasers in connection with the relevant enforcement action, one firm of outside counsel for the Third Amendment Purchasers (and their respective Affiliates) taken as a whole, and (D) if necessary, of one local counsel in any relevant material jurisdiction to the Purchaser Representative and one local counsel for all such other Persons, taken as a whole, and, to the extent that the Third Amendment Purchasers reasonably conclude that their interests are not aligned with those of the other Purchasers in connection with the relevant enforcement action, one firm of local counsel for the Third Amendment Purchasers (and their respective Affiliates) taken as a whole, and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Issuer (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the ~~Loan~~ Note Documents, including their respective rights under this Section, or in connection with the ~~Loans made~~ Notes purchased hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Issuer within 30 days of receipt by the ~~Borrower~~ Issuer of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) ~~The Borrower~~ If the Closing Date occurs, the Issuer shall indemnify ~~each Arranger,~~ the ~~Administrative Agent~~ Purchaser Representative and each ~~Lender~~Purchaser, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (xw) one firm of outside counsel ~~to all Indemnitees~~ for the Purchaser Representative and, (yx) one firm of outside counsel for the Purchasers and their respective Affiliates (taken as a ~~whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole~~ whole) and solely in the case of an actual or perceived conflict of interest, ~~(x)~~ one additional counsel to all affected Purchasers, taken as a whole, (y) to the extent the Third Amendment Note Purchasers seek indemnification hereunder in connection with the Third Amendment Tender Offer or the transactions consummated in connection therewith (including the Issuance of the Third Amendment Notes), one firm of outside counsel for the Third Amendment Note Purchasers and their respective Affiliates (taken as a whole) and (z) if necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole, and ~~(y)~~ solely in the case of an actual or perceived conflict of interest, one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the ~~Loan~~ Note Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the ~~Loan~~ Note Documents, (ii) the use of the proceeds of the ~~Loans~~Notes, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the ~~Borrower~~Issuer, any of its Restricted Subsidiaries or any other ~~Loan~~ Note Party or any Environmental Liability related to the ~~Borrower~~Issuer, any of its Restricted Subsidiaries or any other ~~Loan~~ Note Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Issuer, any other ~~Loan~~ Note Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, other than with respect to the Purchaser Representative or its Related Parties, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the ~~Loan~~ Note Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the ~~Administrative Agent or any Arranger~~Purchaser Representative, acting in its capacity as the ~~Administrative Agent~~ Purchaser Representative or ~~as an Arranger~~its Related Parties) that does not involve any act or omission of the ~~Borrower~~ Issuer or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Issuer pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Issuer within 30 days (x) after receipt by the ~~Borrower~~ Issuer of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the ~~Borrower~~ Issuer of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The ~~Borrower~~ Issuer shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the ~~Borrower~~Issuer, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower~~ Issuer agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Issuer shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses, but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the notarization of this Agreement and any subsequent acknowledgements of debt under this Agreement, the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the ~~Closing Date~~Third Amendment Effective Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, each Issuing Bank, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrowers, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of the Sponsors, Holdings, the Lead Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days (x) after receipt by the Lead Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Lead Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with ~~the~~ such Xxxxxxxx’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (Hayward Holdings, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger,~~ (x) the Administrative Agent and ~~their respective~~ its Affiliates (including applicable travel expenses but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) and (y) by the Lenders (including applicable travel expenses but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole), in each case, in connection with ~~the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility,~~ the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower, the relevant Arranger and/or~~ Borrower and the Administrative ~~Agent)~~Agent or the Lenders, but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as ~~of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers~~applicable) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative ~~Agent, the Arrangers~~ Agent or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced two (2) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each Arranger,~~ the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative ~~Agent or any Arranger~~Agent, acting in its capacity or fulfilling its role as the Administrative Agent or ~~as an Arranger~~similar role or (y) that ~~does not involve~~ involves any act or omission of the Sponsors, Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Hayward Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date (with any expense reimbursement in connection therewith to be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~March 25, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date)~~2016, by and ~~among the Borrower~~among, ~~JPMCB~~ inter alios, Purchaser and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (ATI Physical Therapy, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Lead Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided in a separate writing between the Lead Borrower, the relevant ~~Arranger~~ Arranger, the relevant Issuing Bank and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Lead Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in ~~any relevant~~ each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Lead Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s affiliates, successors, assigns or Related Parties) material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any ~~Arranger~~Arranger or Issuing Bank, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the ~~Borrower~~ Holdings, the Borrowers or any of ~~its Affiliates~~their subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Lead Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any Loan Party that is not Holdings, the Lead Borrower or any Domestic Subsidiary have any payment, reimbursement or guarantee obligations for the Lead Borrower or any Domestic Subsidiary for the payment requirements under this Section 9.03. (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Lead Borrower’s written ~~consent~~ consent, or if the Lead Borrower is offered the ability to assume the defense of the ~~Borrower~~action that was the subject matter of such settlement and elected not to assume such defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Lead Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Spectrum Brands Holdings, Inc.)

Expenses; Indemnity. (ai) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) , in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a ~~whole and~~whole, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole, and (y) one additional local counsel to all affected Persons, taken as a whole)) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (bii) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans,~~ Loans or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. ~~This~~ Without limiting the provisions of Section 2.17(c), this Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, ~~damages or~~ damages, liabilities ~~in respect of a~~ and expenses arising from any non-Tax claim. (ciii) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Topgolf Callaway Brands Corp.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Lead Borrower shall pay (i) all reasonable and documented ~~out-of-pocket~~ outofpocket expenses incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ outofpocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided in a separate writing between the Lead Borrower, the relevant ~~Arranger~~ Arranger, the relevant Issuing Bank and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented ~~out-of-pocket~~ outofpocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ outofpocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Lead Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented ~~out-of-pocket~~ outofpocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in ~~any relevant~~ each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Lead Borrower, any other Loan Party or any of their respective ~~Affiliates);~~ Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and ~~non-appealable~~ nonappealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s affiliates, successors, assigns or Related Parties) material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any ~~Arranger~~Arranger or Issuing Bank, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the ~~Borrower~~ Holdings, the Borrowers or any of ~~its Affiliates~~their subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Lead Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any Loan Party that is not Holdings, the Lead Borrower or any Domestic Subsidiary have any payment, reimbursement or guarantee obligations for the Lead Borrower or any Domestic Subsidiary for the payment requirements under this Section 9.03. (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Lead Borrower’s written ~~consent~~ consent, or if the Lead Borrower is offered the ability to assume the defense of the ~~Borrower~~action that was the subject matter of such settlement and elected not to assume such defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Lead Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (SB/RH Holdings, LLC)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. ~~Except~~ Other than to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail~~, together with backup documentation supporting the relevant reimbursement request~~. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing ~~Persons~~ Persons, in each case, other than Disqualified Institutions (each such ~~Person being called~~ Person, together with their successors and assigns, an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities to which such Indemnitee may become subject arising out of or in connection with (i) the preparation, execution, delivery or administration of the Loan Documents or any agreement or instrument contemplated thereby or the syndication of the Term Facility, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any currently or formerly owned, leased or operated real property or facility, or any Environmental Liability or Environmental Claim related in any way to any Loan Party or any of their respective subsidiaries, (iv) any action taken in connection with this Agreement, including, but not limited to, the payment of principal, interest and fees or (v) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (a “Proceeding”), regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates, and to reimburse each Indemnitee within 30 days following written demand therefor (together with customary backup documentation in reasonable detail supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending a Proceeding (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest where an Indemnitee informs the Borrower of such conflict, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)result; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against ~~another Indemnitee~~ one or more other Indemnitees (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereoftheir respective subsidiaries. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with customary backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Agreement (Daseke, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Wanda Sports Group Co LTD)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. ~~Except~~ Other than to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail~~, together with backup documentation supporting the relevant reimbursement request~~. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing ~~Persons~~ Persons, in each case, other than Disqualified Institutions (each such ~~Person being called~~ Person, together with their successors and assigns, an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities to which such Indemnitee may become subject arising out of or in connection with (i) the preparation, execution, delivery or administration of the Loan Documents or any agreement or instrument contemplated thereby or the syndication of the Term Facility, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans or (iii) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any currently or formerly owned, leased or operated real property or facility, or any Environmental Liability or Environmental Claim related in any way to any Loan Party or any of their respective subsidiaries or (iv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (a “Proceeding”), regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates, and to reimburse each Indemnitee within 30 days following written demand therefor (together with customary backup documentation in reasonable detail supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending a Proceeding (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest where an Indemnitee informs the Borrower of such conflict, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)result; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against ~~another Indemnitee~~ one or more other Indemnitees (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereoftheir respective subsidiaries. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with customary backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Agreement (Daseke, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Lead Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided in a separate writing between the Lead Borrower, the relevant ~~Arranger~~ Arranger, the relevant Issuing Bank and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Lead Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in ~~any relevant~~ each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the ~~execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder~~ Transactions or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim.-219- #96942867v160458181 #96942867v1 (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Lead Borrower’s written ~~consent~~ consent, or if the Lead Borrower is offered the ability to assume the defense of the ~~Borrower~~action that was the subject matter of such settlement and elected not to assume such defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Lead Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (SB/RH Holdings, LLC)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date ~~(with any expense reimbursement in connection therewith to be governed by~~ and on the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) Amendment No. 13 Effective Date and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related in any way to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days of receipt by the Lead Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, each Issuing Bank, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrowers, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of ~~the~~ Holdings, any Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by ~~the~~ any Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days (x) after receipt by the Lead Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Lead Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the relevant Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (Ecovyst Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date (with any expense reimbursement in connection therewith to be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~February 26, ~~2019~~ 2017 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among ~~the Borrower~~Acquisition Sub, ~~JPMCB~~ Jefferies and ~~the Arrangers~~Nomura Securities) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Dragoneer Growth Opportunities Corp.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of ~~one firm of outside counsel to all such Persons taken as a whole~~ Cravath, Swaine & Mxxxx LLP and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of ~~outside~~ counsel ~~to all such Persons taken as a whole~~ and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Eighth Amendment Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and ~~liabilities~~ liabilitiesLiabilities and related expenses (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of counsel ~~to all Indemnitees taken as a whole~~ and, if ~~reasonably~~ necessary, of one local counsel in any relevant jurisdiction to all Indemnitees, taken as a ~~whole and~~ whole, and, solely in the case of an actual or ~~perceived~~ potential conflict of interest, ~~(x)~~ one additional counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, ~~and (y)~~ and, if reasonably necessary, one additional local counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, in each relevant jurisdiction), ) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of any claim, litigation, investigation or pProceeding, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates) relating to (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use or the proposed use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release, threatened Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any other Environmental Liability to the extent related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)Party; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is isLiabilities or related expenses (i) are determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnitee, or to the extent such judgment finds that any such loss, claim, damage, or liability hasLiabilities or related expenses have resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or ~~proceeding~~ pProceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or ~~proceeding~~ pProceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not ~~involve~~ arise out of any act or omission of the Sponsors, Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. ~~Each~~ Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or and return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any ~~proceeding~~ pProceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or ~~conditioned~~conditioned (it being understood that the withholding of consent due to non-satisfaction of either of the conditions described in clauses (i) and (ii) of the following sentence (with “Borrower” being substituted for “Indemnitee” in each such clause) shall be deemed reasonable)), but if any ~~proceeding~~ pProceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such ~~proceeding~~pProceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened ~~proceeding~~ pProceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such ~~proceeding~~ pProceeding and (ii) such settlement does not include any statement as to any admission of fault or ~~culpability~~culpability of the relevant Indemnitee. (d) 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 thereby except to the extent the liability of any such person is found in a final ruling by a court of competent jurisdiction to have resulted from such person’s gross negligence or willful misconduct. (e) Each Lender severally agrees to pay any amount required to be paid by the Borrower under paragraphs (a), (b) or (c) of this Section 9.03 or under Section 9.04 to the Administrative Agent, each Issuing Bank and the Swingline Lender, and each Related Party of any of the foregoing Persons (each, an “Agent-Related Person”) (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Applicable Percentage in effect on the date on which such payment is sought under this Section (or, if such payment is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Applicable Percentage immediately prior to such date), and agrees to indemnify and hold each Agent-Related Person harmless from and against any and all Liabilities and related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent-Related Person under or in connection with any of the foregoing; provided that the unreimbursed expense or Liability or related expense, as the case may be, was incurred by or asserted against such Agent-Related Person in its capacity as such; provided further that no Lender shall be liable for the payment of any portion of such Liabilities, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted primarily from such Agent-Related Person’s gross negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Appears in 1 contract

Samples: First Lien Credit Agreement (Waystar Holding Corp.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of ~~one firm of outside counsel to all such Persons taken as a whole~~ Cravath, Swaine & Mxxxx LLP and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole, and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of affected Persons, taken as a whole, and, if reasonably necessary, one additional local counsel to each similarly situated group of affected Persons, taken as a whole, in each relevant jurisdiction) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of ~~outside~~ counsel ~~to all such Persons taken as a whole~~ and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Eighth Amendment Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all ~~losses, claims, damages~~ Liabilities and ~~liabilities~~ related expenses (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of counsel ~~to all Indemnitees taken as a whole~~ and, if ~~reasonably~~ necessary, of one local counsel in any relevant jurisdiction to all Indemnitees, taken as a ~~whole and~~ whole, and, solely in the case of an actual or ~~perceived~~ potential conflict of interest, ~~(x)~~ one additional counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, ~~and (y)~~ and, if reasonably necessary, one additional local counsel to ~~all~~ each similarly situated group of affected ~~Indemnitees~~Persons, taken as a whole, in each relevant jurisdiction), ) incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of any Proceeding, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates) relating to (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use or the proposed use of the proceeds of the ~~Loans,~~ Loans or any Letter of Credit or (iii) any actual or alleged Release, threatened Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any other Environmental Liability to the extent related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)Party; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such ~~loss, claim, damage,~~ Liabilities or ~~liability~~ related expenses (i) is are determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such ~~Indemnitee~~ Indemnitee, or to the extent such judgment finds that any such Liabilities or related expenses have resulted from such Person’s material breach of the Loan Documents or (ii) ~~arises~~ arise out of any ~~claim, litigation, investigation or proceeding~~ Proceeding brought by such Indemnitee against another Indemnitee (other than any ~~claim, litigation, investigation or proceeding~~ Proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not ~~involve~~ arise out of any act or omission of the Sponsors, Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. ~~Each~~ Notwithstanding the foregoing, each Indemnitee shall be obligated to refund or and return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any ~~proceeding~~ Proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or ~~conditioned~~conditioned (it being understood that the withholding of consent due to non-satisfaction of either of the conditions described in clauses (i) and (ii) of the following sentence (with “Borrower” being substituted for “Indemnitee” in each such clause) shall be deemed reasonable)), but if any ~~proceeding~~ Proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such ~~proceeding~~Proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened ~~proceeding~~ Proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such ~~proceeding~~ Proceeding and (ii) such settlement does not include any statement as to any admission of fault or ~~culpability~~culpability of the relevant Indemnitee. (d) 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 thereby except to the extent the liability of any such person is found in a final ruling by a court of competent jurisdiction to have resulted from such person’s gross negligence or willful misconduct. (e) Each Lender severally agrees to pay any amount required to be paid by the Borrower under paragraphs (a), (b) or (c) of this Section 9.03 or under Section 9.04 to the Administrative Agent, each Issuing Bank and the Swingline Lender, and each Related Party of any of the foregoing Persons (each, an “Agent-Related Person”) (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Applicable Percentage in effect on the date on which such payment is sought under this Section (or, if such payment is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Applicable Percentage immediately prior to such date), and agrees to indemnify and hold each Agent-Related Person harmless from and against any and all Liabilities and related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or arising out of the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent-Related Person under or in connection with any of the foregoing; provided that the unreimbursed expense or Liability or related expense, as the case may be, was incurred by or asserted against such Agent-Related Person in its capacity as such; provided further that no Lender shall be liable for the payment of any portion of such Liabilities, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted primarily from such Agent-Related Person’s gross negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

Appears in 1 contract

Samples: First Lien Credit Agreement (Waystar Holding Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative ~~Agent~~ Agent, Credit Support Provider and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the ~~syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the~~ preparation, execution, delivery and administration of the Loan Documents, the Credit Support Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document or Credit Support Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arranger, Credit Support Provider or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents or the Credit Support Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Borrower of such conflict, (x) one additional counsel to all similarly situated affected Indemnitees, taken as a whole, and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the ~~Loans,~~ Loans or (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the ~~foregoing~~foregoing (including any matters arising under Environmental Law), whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement or compromise of, or the consent to the ending of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Isos Acquisition Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Company, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution [[5470263]] (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersCompany) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each ~~Lender~~Issuing Bank, each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all ~~Indemnitees,~~ Indemnitees taken as a whole ~~and~~ and, solely in the case of an actual or perceived conflict of ~~interest~~interest after the affected Person notifies the Company of such conflict, (x) one additional counsel to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a ~~whole,~~ whole and (y) one additional local counsel in any relevant material jurisdiction to all similarly situated affected ~~Indemnitees,~~ Indemnitees taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby ~~and/or the enforcement of the Loan Documents~~(except for any Taxes, which shall be governed exclusively by Section 2.17), (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) ~~any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by~~ to the ~~Borrower,~~ extent related to any of ~~its Restricted Subsidiaries~~ the foregoing (including the exercise of any rights of any Arranger, Administrative Agent, Issuing Bank, Lender or ~~any other Loan~~ Related Party or arising in connection with the matters that are the subject of clause (i) above), any Environmental Liability related in any way to the ~~Borrower,~~ Borrower or any of its ~~Restricted~~ Subsidiaries or ~~any other Loan Party and/or~~ (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Company, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, ~~damage,~~ damage or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Party or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage or liability has resulted from such Person’s or a Related Party of such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of the ~~Borrower~~ Company or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all [[5470263]] amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, ~~expenses,~~ expenses or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages or liabilities ~~in respect of a~~ arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement or compromise of, or the consent to the entry of any judgment with respect to, any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is ~~settled~~ so settled, compromised or consented to with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment entered against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Reynolds Group Holdings LTD)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger, the Administrative~~ Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower or any other Loan Party and except as otherwise provided in a separate writing between the ~~Borrower,~~ Borrower or the relevant ~~Arranger and/or the Administrative~~ Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by each Issuing Bank in 172 connection with the ~~Administrative Agent~~issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Agents, the ~~Arrangers~~ Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, (x) to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one firm of outside counsel to all such Persons taken as a whole and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of Persons, and (y) if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole~~whole and, solely in the case of an actual or potential conflict of interest, one additional local counsel to each similarly situated group of Persons, in each such relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each ~~Arranger~~Agent, each Issuing Bank, the ~~Administrative Agent~~ Swingline Lender and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole, and (y) one additional local counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)) or (iv) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by any Loan Party or the Restricted Subsidiaries, or any Environmental Liability of any Loan Party or the Restricted Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent a final and non-appealable judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.or

Appears in 1 contract

Samples: Credit Agreement (Victory Capital Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-~~of-~~of- pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date (with any expense reimbursement in connection therewith to be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~July 28, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date)~~2017, by and ~~among the Borrower~~among, ~~JPMCB~~ inter alios, Merger Sub and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-~~of-~~of- pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its ~~Restricted~~ Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its ~~Restricted~~ Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (First Watch Restaurant Group, Inc.)

Expenses; Indemnity. (a) ~~Subject to~~ Except as otherwise provided in Section ~~9.05(f)~~5.06, the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any material relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term Facility, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any material relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. ~~Except~~ Other than to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt ~~by the Borrower~~ of an invoice setting forth such expenses in reasonable detail~~, together with backup documentation supporting the relevant reimbursement request~~. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing ~~Persons~~ Persons, in each case, other than Disqualified Institutions (each such ~~Person being called~~ Person, together with their successors and assigns, an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities to which such Indemnitee may become subject arising out of or in connection with (i) the preparation, execution, delivery or administration of the Loan Documents or any agreement or instrument contemplated thereby or the syndication of the Term Facility, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby, (ii) the use of the proceeds of the Loans or (iii) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any currently or formerly owned, leased or operated real property or facility, or any Environmental Liability or Environmental Claim related in any way to any Loan Party or any of their respective subsidiaries or (iv) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (a “Proceeding”), regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates, and to reimburse each Indemnitee within 30 days following written demand therefor (together with customary backup documentation in reasonable detail supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending a Proceeding (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any material relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or reasonably perceived conflict of ~~interest~~interest where an Indemnitee informs the Borrower of such conflict, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates)result; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Indemnitee’s affiliates, controlling Persons or its or their respective directors, managers, officers, trustees, employees, partners, agents, advisors or other representatives or, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against ~~another Indemnitee~~ one or more other Indemnitees (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, Intermediate Holdings, the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereoftheir respective subsidiaries. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after ~~receipt by the Borrower of a~~ written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with customary backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably ~~withheld, delayed~~ withheld or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. ~~The~~ No Borrower ~~shall not~~shall, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably ~~withheld, conditioned~~ withheld or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Term Loan Agreement (Concrete Pumping Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date (with any expense reimbursement in connection therewith to be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~July 28, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date)~~2017, by and ~~among the Borrower~~among, ~~JPMCB~~ inter alios, Merger Sub and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its ~~Restricted~~ Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its ~~Restricted~~ Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (First Watch Restaurant Group, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the ~~syndication~~ arrangement and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks, the Swingline Lender or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a ~~whole and~~whole, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Persons, taken as a whole, and, if necessary, (y) one additional local counsel to all affected Persons, taken as a whole), in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank, the Swingline Lender and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a ~~whole~~ whole, and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent such judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Olaplex Holdings, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates -219- (including applicable syndication expenses and travel expenses, but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing ~~Date~~Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The ~~Borrower~~ Borrowers shall indemnify each Arranger, the Documentation Agent, each Issuing Bank, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any -220- other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrowers, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of the Sponsor, Holdings, Intermediate Holdings, the Lead Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 days (x) after receipt by the Lead Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Lead Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) ~~The~~ No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, ~~delayed~~ conditioned or ~~conditioned~~delayed), but if any proceeding is settled with ~~the~~ such Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Hillman Companies Inc)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall ~~pay~~ pay (i) all reasonable and documented out-of-pocket expenses (provided, for the avoidance of doubt, that such out-of-pocket expenses may refer to those documented expenses payable to third parties that are unpaid), incurred by each ~~Arranger~~Lender, the ~~Administrative Agent~~ Agents and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (i) one firm of outside counsel to ~~all such Persons~~ the Agents and their Affiliates, taken as a ~~whole~~ whole, and, if reasonably necessary, of one local counsel in any relevant jurisdiction to ~~all such Persons~~the Agents and their Affiliates, taken as a whole and (ii) one firm of outside counsel to each Lender and their Affiliates, taken as a whole and if reasonably necessary, of one local counsel in any relevant jurisdiction to the Lenders and their Affiliates, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as IntraLinks) of the Term ~~Facility~~Loans, in connection with the negotiation, preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, ~~but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and~~ except as otherwise provided in a separate writing ~~between~~ among the Borrower, the ~~relevant Arranger~~ Lenders and/or the ~~Administrative Agent)~~Agents; provided, ~~but excluding solely~~ that in the case of expenses incurred prior to or on the Closing Date, in connection with the negotiation, preparation, execution and delivery of the Loan Documents and any ~~arranging~~ related documentation (x) incurred by the RXR Representative and its Affiliates (including the fees of ~~commitments~~ Xxxxxx, Xxxx & Xxxxxxxx LLP), no more than $750,000 (the “RXR Expense Cap”) of such expenses shall be required to be reimbursed pursuant to this Section 9.03(a)(i) and (y) incurred by CF Principal Investments LLC and its Affiliates (including the fees of Sidley Austin LLP), no more than $750,000 (the “CF Expense Cap”) of such expenses shall be required to be reimbursed pursuant to this Section 9.03(a)(i)); provided, further, that the Borrower has agreed that (x) the RXR Representative and its Affiliates may fund their Initial Loans net of the RXR Expense Cap, (y) CF Principal Investments and its Affiliates may fund its Initial Loans net of the CF Expense Cap and (z) each of the RXR Representative and CF Principal Investments LLC shall not be obligated to provide any invoices documenting the ~~Term Facility~~ amount of such expenses incurred prior to or on the Closing ~~Date (with any expense reimbursement in connection therewith to~~ Date, and the amount of each of RXR Expense Cap and CF Expense Cap may be ~~governed~~ retained by the ~~Engagement Letter~~RXR Representative and CF Principal Investments LLC, ~~dated as~~ respectively, regardless of ~~April 17~~the amount of expenses actually incurred, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and~~ and; (ii) all reasonable and documented out-of-pocket expenses incurred by the ~~Administrative Agent, the Arrangers~~ Agents or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (i) (x) one firm of outside counsel to ~~all such Persons~~ the Agents and their Affiliates, taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to ~~all such Persons~~the Agents and their Affiliates, taken as a whole and (y) solely in the case of an actual or potential conflict of interest, (A) one additional counsel to the Agents and their Affiliates similarly affected, taken as a whole, and (B) one additional local counsel to the Agents and their Affiliates similarly affected, taken as a whole, in any relevant jurisdiction and (ii) (x) one firm of outside counsel to the Lenders and their Affiliates, taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to the Lenders and their Affiliates, taken as a whole and (y) solely in the case of an actual or potential conflict of interest, (A) one additional counsel to the Lenders and their Affiliates similarly affected, taken as a whole and (B) one additional local counsel to the Lenders and their Affiliates similarly affected, taken as a whole, in any relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this ~~paragraph (a~~Section 9.03(a) shall be payable by the Borrower within 30 10 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify ~~each Arranger,~~ the ~~Administrative Agent~~ Agents and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket ~~fees~~fees (for avoidance of doubt, such out-of-pocket expenses may refer to those documented expenses payable to third parties that are unpaid), disbursements and other charges of (x) one firm of outside counsel to ~~all Indemnitees~~ the Agents and their Affiliates, taken as a ~~whole~~ whole, and, if reasonably necessary, of one local counsel in any relevant jurisdiction to ~~all Indemnitees~~the Agents and their Affiliates, taken as a whole, (y) one firm of outside counsel to each Lender and their Affiliates, taken as a whole and if reasonably necessary, of one local counsel in any relevant jurisdiction to the Lenders and their Affiliates, taken as a whole, and (z) solely in the case of an actual or ~~perceived~~ potential conflict of interest, (xA) one additional counsel to all similarly affected Indemnitees, taken as a whole, and (yB) one additional local counsel to all similarly affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of of: (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, , (ii) the use of the proceeds of the ~~Loans,~~ Loans or any Letters of Credit, (iii) any actual or alleged Release ~~or presence~~ of Hazardous Materials on, at, ~~under~~ in, under, to or from any property currently or, to the extent caused by the Borrower or any of its Subsidiaries, formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its ~~Restricted~~ Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its ~~Restricted~~ Subsidiaries or any other Loan Party ~~and/or~~ and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third ~~party or by~~ party, the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or ~~liability~~ liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee, and provided further, that such indemnity shall not, as to any Indemnitee who is also a Lender (a “Lender Indemnitee”) be available to the extent such judgment finds that any such loss, claim, damage, or liability is determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from such ~~Person~~Lender Indemnitee’s material breach of the Loan Documents or or (ii) arises out of any claim, litigation, investigation or proceeding brought by such ~~Indemnitee~~ Xxxxxx Xxxxxxxxxx against another Lender Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against ~~the Administrative Agent or~~ any ~~Arranger~~Agent, acting in its capacity as ~~the Administrative Agent or as~~ an ~~Arranger~~Agent) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section ~~9.03(b)~~ 9.03 to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms ~~hereof~~hereof as determined by a final and non-appealable judgment of a court of competent jurisdiction. All amounts due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower within 30 10 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (View, Inc.)

Expenses; Indemnity. ~~(a) Subject to Section 9.05(f), the Borrower~~ The Borrowers shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses, but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Revolving Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower~~ Borrowers and except as otherwise provided separately in ~~a separate~~ writing between the ~~Borrower~~Borrowers, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the notarization of this Agreement and any subsequent acknowledgements of debt under this Agreement, the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Revolving Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the ~~Closing Date~~SecondThird Amendment Effective Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days of receipt by the ~~Borrower~~ Borrowers of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request~~. (b)~~ . The ~~Borrower~~ Borrowers shall indemnify each Arranger, each Issuing Bank, the Administrative ~~Agent~~ Agent, and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use 133208524_1 of the proceeds of the ~~Loans~~Revolving Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the ~~Borrower~~Borrowers, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the ~~Borrower~~Borrowers, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of the Sponsors, Holdings, the Lead Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the ~~Borrower~~ Borrowers pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the ~~Borrower~~ Borrowers within 30 thirty (30) days (x) after receipt by the Lead Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Lead Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim~~. (c) The~~ . No Borrower shall ~~not~~ be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with ~~the~~ such Xxxxxxxx’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the ~~Borrower agrees~~ Borrowers agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The ~~Borrower~~ Borrowers shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Abl Credit Agreement (Hayward Holdings, Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole)~~ whole in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent)~~, but excluding solely~~ ; provided that any such expenses incurred in connection with any ~~arranging~~ underwriting of commitments to provide the ~~Term Facility~~ Credit Facilities on the Closing Date ~~(with any expense reimbursement in connection therewith to~~ shall be governed by the ~~Engagement~~ Commitment Letter, dated as of ~~April 17~~October 31, ~~2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date)~~2017, by and ~~among~~ among, the ~~Borrower, JPMCB~~ Borrower and the ~~Arrangers)~~ Arrangers and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Shift4 Payments, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each ~~Arranger, the Administrative~~ Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower or any other Loan Party and except as otherwise provided in a separate writing between the ~~Borrower,~~ Borrower or the relevant ~~Arranger and/or the Administrative~~ Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by each Issuing Bank in connection with the ~~Administrative Agent~~issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Agents, the ~~Arrangers~~ Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, (x) to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one firm of outside counsel to all such Persons taken as a whole and, solely in the case of an actual or potential conflict of interest, one additional counsel to each similarly situated group of Persons, and (y) if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a ~~whole~~whole and, solely in the case of an actual or potential conflict of interest, one additional local counsel to each similarly situated group of Persons, in each such relevant jurisdiction) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each ~~Arranger~~Agent, each Issuing Bank, the ~~Administrative Agent~~ Swingline Lender and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to ~~the actual reasonable and documented out-of-pocket fees, disbursements and other charges of~~ one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole, and (y) one additional local counsel to ~~all~~ each similarly situated group of affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates), security-holders or creditors) or (iv) any actual or alleged presence or Release of Hazardous Materials at, on, under or from any property or facility currently or formerly owned, leased or operated by any Loan Party or the Restricted Subsidiaries, or any Environmental Liability of any Loan Party or the Restricted Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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, to the extent a final and non-appealable judgment finds that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee solely against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against ~~the Administrative Agent or~~ any ~~Arranger~~Agent, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the Borrower or any of ~~its Affiliates~~their respective Affiliates or Subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof, as determined by a final non-appealable judgment of a court of competent jurisdiction. All amounts due under this ~~paragraph~~ clause (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonably detailed backup documentation supporting the relevant reimbursement request. This ~~Section 9.03(b~~clause (b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, ~~damages or liabilities in respect of a~~ damages, etc. arising from any non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, ~~delayed~~ conditioned or ~~conditioned~~delayed), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower ~~agrees~~ agree to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Cowen Inc.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by Parent, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the ArrangersParent) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Joint Lead Arrangers, the Joint Bookrunners, the Documentation Agents, the Syndication Agent, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder Date or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its AffiliatesAmendment No. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.3

Appears in 1 contract

Samples: Credit Agreement (Reynolds Consumer Products Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by ~~each Arranger~~the Arrangers, the Administrative Agent and their respective Affiliates (including applicable syndication expenses and travel expenses but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided separately in ~~a separate~~ writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers or the Lenders or any of their respective Affiliates (but limited, 129590608_2#96809902v9 in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if reasonably necessary, of one local counsel in any relevant jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this ~~Section~~Section 9.03, or in connection with the Loans made hereunder. Except to the extent required to be paid on the ~~Closing Date~~Third Amendment Effective Date (and invoiced three (3) Business Days prior thereto), all amounts due under this paragraph (a) shall be payable by the Borrower within 30 thirty (30) days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent and~~ Agent, each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one legal counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or ~~perceived~~ potential conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each relevant jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is results from the gross negligence, bad faith or willful misconduct or material breach of the Loan Documents by such Indemnitee, in each case, as determined by a final ~~and~~ 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 such Person’s material breach of the Loan Documents~~ or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding (x) that is brought by or against the Administrative Agent or any Arranger, acting in its capacity or fulfilling its role as the Administrative Agent or as an ~~Arranger~~Arranger or similar role or (y) that ~~does not involve~~ involves any act or omission of the Sponsors, Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries). Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 thirty (30) days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an ~~invoice~~ invoice, setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Borrower’s written ~~consent of the Borrower~~consent, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened claim, litigation, investigation or proceeding against any Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all 129590608_2#96809902v9 liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)

Expenses; Indemnity. (a) ~~Subject to Section 9.05(f), the~~ The Lead Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, each Issuing Bank, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks or SyndTrak) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Lead Borrower and except as otherwise provided in a separate writing between the Lead Borrower, the relevant ~~Arranger~~ Arranger, the relevant Issuing Bank and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in ~~any~~ each relevant jurisdiction to all such Persons, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all Persons, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request., (b) The Lead Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the ~~actual~~ reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if ~~reasonably~~ necessary, one local counsel in ~~any relevant~~ each appropriate jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel in each appropriate jurisdiction to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the Transactions or the execution or delivery of the Loan Documents or any agreement or instrument contemplated ~~thereby~~thereby and/or the enforcement of the Loan Documents, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or ~~thereby and/or the enforcement of the Loan Documents~~thereby, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or ~~leased~~ operated by the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Lead Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Lead Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s affiliates, successors, assigns or Related Parties) material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any ~~Arranger~~Arranger or Issuing Bank, acting in its capacity as ~~the Administrative Agent or as an Arranger~~such) that does not involve any act or omission of the ~~Borrower~~ Holdings, the Borrowers or any of ~~its Affiliates~~their subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Lead Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. Notwithstanding anything to the contrary contained herein or in any other Loan Document, in no event shall any Loan Party that is not Holdings, the Lead Borrower or any Domestic Subsidiary have any payment, reimbursement or guarantee obligations for the Lead Borrower or any Domestic Subsidiary for the payment requirements under this Section 9.03. (c) The Lead Borrower shall not be liable for any settlement of any proceeding effected without ~~the written~~ its consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the Lead Borrower’s written ~~consent~~ consent, or if the Lead Borrower is offered the ability to assume the defense of the ~~Borrower~~action that was the subject matter of such settlement and elected not to assume such defense, or if there is a final judgment against any Indemnitee in any such proceeding, the Lead Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Lead Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (SB/RH Holdings, LLC)

Appears in 1 contract

Samples: Credit Agreement (Wanda Sports Group Co LTD)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall ~~pay~~ pay, upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrower, (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the ~~Borrower and except as otherwise provided in a separate writing between the~~ Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole, in each relevant jurisdiction), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned or leased by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and 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 such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent or any Arranger, acting in its capacity as the Administrative Agent or as an Arranger) that does not involve any act or omission of the Borrower or any of its Affiliates. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without the written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned), but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: First Lien Credit Agreement (Isos Acquisition Corp.)

Expenses; Indemnity. (a) Subject to Section 9.05(f), the Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as ~~IntraLinks~~Intralinks) of the ~~Term Facility~~Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent), but excluding solely in connection with any arranging of commitments to provide the Term Facility on the Closing Date (with any expense reimbursement in connection therewith to be governed by the Engagement Letter, dated as of April 17, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date), by and among the Borrower, JPMCB and the Arrangers) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the ~~Arrangers~~ Arrangers, the Issuing Banks or the Lenders or any of their respective Affiliates (but ~~limited,~~ limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one firm of outside counsel to all such Persons taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole (and solely in the case of a conflict of interest, (A) one additional counsel to all affected Persons, taken as a whole, and (B) one additional local counsel in any such jurisdiction to all affected Persons, taken as a whole), and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder. Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request. (b) The Borrower shall indemnify each Arranger, the Administrative ~~Agent~~ Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of any such loss, claim, damage and/or liability constituting legal fees and ~~expenses,~~ expenses to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant 188188 WXXX:\98093729\19\40590.0004 material jurisdiction to all Indemnitees, taken as a whole and solely in the case of ~~an actual or perceived~~ a conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole~~, in each relevant jurisdiction~~), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the ~~Loans~~Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly ~~owned~~ owned, leased or ~~leased~~ operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by or against a third party or by or against the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s (or such Person’s Related Party’s) material breach of the Loan Documents (other than, with the written consent of the Borrower in its sole discretion, the Administrative Agent, in its capacity as such, in respect of obligations not owed to the Loan Parties) or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative ~~Agent~~ Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative ~~Agent~~ Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its ~~Affiliates~~subsidiaries. Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof. ~~All amounts~~ Any amount due under this ~~paragraph (b~~Section 9.03(b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request. This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim. (c) The Borrower shall not be liable for any settlement of any proceeding effected without ~~the~~ its written consent ~~of the Borrower~~ (which consent shall not be unreasonably withheld, delayed or conditioned)) or any other losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above. The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.

Appears in 1 contract

Samples: Credit Agreement (Definitive Healthcare Corp.)

Common use of Expenses; Indemnity Clause in Contracts