General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.
Appears in 2 contracts
Samples: Revolving Credit Loan Agreement (Sundance Homes Inc), Revolving Credit Loan Agreement (Sundance Homes Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any Property or the environment relating to the Property, the Lease, or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agentapplicable Property; provided, thenhowever, this Section 11.1 shall not be applicable to Claims arising from Taxes (except to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply that any payment hereunder is required to such Lender or be made on an After Tax Basis) and Indemnified Persons acknowledge that the Agent, as applicableIndemnified Provider's obligations for Taxes is set forth in Section 11.2. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld, delayed or conditioned; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if (i) such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim and (ii) such settlement would not adversely affect the rights or increase the obligations of the Indemnity Provider. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, an adverse admission by or with respect to the Indemnified Person.
Appears in 2 contracts
Samples: Participation Agreement (Pep Boys Manny Moe & Jack), Participation Agreement (Pep Boys Manny Moe & Jack)
General Indemnity. Without limiting Whether or not the transactions contemplated hereby are consummated, the Loan Parties shall indemnify, defend and hold the Agent-Related Persons, and each Bank and each of its respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "INDEMNIFIED PERSON") harmless from and against any other provision and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Administrative Agent or replacement of any Bank) be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilitiesforegoing, including claims brought by with respect to any shareholder investigation, litigation or former shareholder of proceeding (including any Borrower, and Insolvency Proceeding or appellate proceeding) related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person to or arising out of this Agreement or the Loans or the use of the proceeds thereof, or related to any claimforeign exchange transactions entered into in connection herewith, litigation, investigation or proceeding (whether or not such any Indemnified Person is a party thereto) relating thereto (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED, that the Loan Parties shall have no obligation hereunder to any transactions, services or matters that are the subject or arise in connection Indemnified Person with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating respect to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Indemnified Liabilities resulting solely from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days survive payment of written demand thereforall other Obligations.
Appears in 2 contracts
Samples: Credit Agreement (Mail Well Inc), Credit Agreement (Mail Well Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person (includingby any third party, including without limitation, relating limitation Claims arising from the negligence of an Indemnified Person (but not to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, willful misconduct or subjective bad faith willful breach of such Indemnified Person)) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreement; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableabsolute liability in tort. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim, the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non- controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 13.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 13.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and no Indemnity Provider shall be permitted to respond to any separate but substantially similar Claim in its own name or related action in that of the same jurisdiction. Borrowers Indemnified Person unless (A) the Indemnity Provider shall not consent have agreed to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider (in its initial notice of the Claim) that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 13.1) exceeds $10,000, (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person), (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 13.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnified Person and reasonably acceptable to the Indemnity Provider stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Performance Food Group Co)
General Indemnity. Without limiting any other provision of this Agreement Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless Lender Indemnitees (defined below) from Losses that may be imposed upon or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person or asserted against any Lender Indemnitees and directly or indirectly arising out of or in any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) way relating to any transactionsone or more of the following: (a) any breach by Borrower of its obligations under, services or matters that are the subject or arise in connection with or as a result of any material misrepresentation by Borrower contained in, this Agreement or the transactions contemplated hereby other Loan Documents; (includingb) the use or intended use of the proceeds of the Loan; (c) ownership of the Security Instrument, without limitation, relating to the properties Property or business any interest therein or receipt of any BorrowerRents; (d) any amendment to, or restructuring of, the Debt, and the Note, this Agreement, the Security Instrument, or any default other Loan Documents; (e) any and all lawful action that may be taken by Lender in connection with the enforcement of the provisions of this Agreement, the Security Instrument, the Note or any of the other Loan Documents, whether or not suit is filed in connection with same, or in connection with Borrower, any guarantor or indemnitor and/or any partner, joint venturer or shareholder thereof becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding; (f) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (g) any use, nonuse or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (h) any failure on the part of Borrower to perform or be in compliance with any of the terms of the Security Instrument; (i) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (j) the failure of any person to file timely with the Internal Revenue Service an accurate Form 1099-S, Proceeds from Real Estate Transactions, or Form 0000-X, Xxxxxxxxx for Recipients of Proceeds from Real Estate Broker and Barter Exchange Transactions, which may be required in connection with the Security Instrument, or to supply a copy thereof in a timely fashion to the recipient of the proceeds of the transaction in connection with which the Security Instrument is made; (k) any failure of the Property to be in compliance with any Legal Requirements; (l) the enforcement by any Lender Indemnitees of the provisions of this Section 11.13; (m) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease and/or the Operating Lease; (n) the payment of any commission, charge or brokerage fee to anyone claiming through Borrower which may be payable in connection with the funding of the Loan; or (o) any misrepresentation made by Borrower in this Agreement, the performance or observance of any representation, warranty, covenant or condition in this Agreement Security Instrument or any other Loan Document); provided, however, that such indemnity Borrower shall not apply have any obligation to any the Lender Indemnitees hereunder to the extent that such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Losses arise from the gross negligence, illegal acts, fraud or willful misconduct of the Lender Indemnitees or subjective bad faith any breach of such Indemnified Personthe Loan Documents by Lender Indemnitees. To the extent that the undertaking to indemnify, defend and if such Indemnified Person hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, permitted to pay and satisfy under applicable law to the extent payment and satisfaction of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply all Losses incurred by the Lender Indemnitees. Any amounts payable to such Lender or by reason of the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect application of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person 11.13 shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person become immediately due and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel payable and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel interest at the expense of Borrowers, provided that Borrowers shall not be liable for Default Rate from the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar date loss or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving damage is sustained by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforLender Indemnitees until paid.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentThe Lessees, Borrowers hereby jointly and severally indemnify each Lenderseverally, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, hereby assume liability for and agree to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person (including, without limitation, relating other than to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, willful misconduct or subjective bad faith willful breach of such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, any Lease or any other Operative Agreement or on or with respect to any Property or Improvements, including, without limitation, Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of a Property or any part thereof; (b) any latent or other defects in any property whether or not discoverable by an Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the AgentLessees; (c) a violation of Environmental Laws, thenEnvironmental Claims or other loss of or damage to any property or the environment relating to any Property, any Lease, any Development Agency Agreement or the Lessees; (d) the Operative
(i) Claims (except Claims against the Trust Company) to the extent such Claims arise solely out of such gross negligence, willful misconduct events occurring after the expiration of the Terms of all Leases and after a Lessee's discharge of all its obligations under the Operative Agreements or subjective bad faith, such indemnity shall not apply to such Lender (ii) any Taxes including any Claim (or the Agent, as applicable. If any litigation or proceeding is brought against any portion of a Claim) made upon an Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant by a third party that at its origin is based upon a Tax (other than amounts necessary to this Section 2.22make any payments hereunder on an After Tax Basis, where the Lessees are otherwise specifically required to make such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it payments on account of such delayan After Tax Basis). Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers The Lessees shall be entitled to participate in such litigation or proceeding andcontrol, after written notice from Borrowers to such Indemnified Person, to and shall assume full responsibility for the defense of any Claim; provided, however, that the Owner Trustee and the Trust Company, the Agents and the Investor named in such litigation or proceeding with counsel of its choice at its expenseClaim, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ each retain separate counsel at the expense of Borrowersthe Lessees; provided, provided further, that Borrowers such parties shall use reasonable efforts to share counsel to the extent practicable and minimize the fees of counsel being reimbursed hereunder. The Lessees and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such notice by an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent a condition to the entry Lessees' obligations under this Section 13.01, except to the extent failure to give such notice prejudices such Lessee's rights hereunder. After an Indemnified Person has been fully indemnified for a Claim pursuant to this Section 13.01, and so long as no Event of Default under any judgment or enter into Lease shall have occurred and be continuing, the Lessees shall be subrogated to any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to right of such Indemnified Person of a release from all liability in (except against another Indemnified Person) with respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforClaim.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentSubject to Section 7.3, Borrowers from and after the Closing:
(a) the Seller hereby jointly agrees to indemnify, defend and severally indemnify each Lender, hold harmless the Agent Buyer and its Affiliates and its and their respective directors, managers, trustees, officers, employees, Affiliates agents and agents employees (collectively, "the “Buyer Indemnified Persons"Parties”) against, and agree to hold each such Indemnified Person harmless from, any against and in respect of all claims, damages and liabilities, including claims brought by any shareholder Losses suffered or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such the Buyer Indemnified Person Parties to the extent arising out of or resulting from (i) any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business breach of any Borrowerof the representations or warranties (in each case, or any default by a Borrower in when made) of the performance or observance of any representation, warranty, covenant or condition Seller in this Agreement or (ii) any other Loan Document)breach of any of the covenants or agreements of the Seller or Akcea in this Agreement; provided, however, that such indemnity the foregoing shall not apply exclude any indemnification to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction Buyer Indemnified Party to have arisen the extent resulting from (x) the gross negligence, willful misconduct misconduct, or subjective bad faith fraud of any Buyer Indemnified Party or (y) acts or omissions of Seller or any of its Affiliates taken (or not taken) upon written instructions from any Buyer Indemnified Party (unless Seller is otherwise liable for such Losses pursuant to the terms of this Agreement); and
(b) the Buyer hereby agrees to indemnify, defend and hold harmless the Seller and its Affiliates and its and their directors, officers, agents and employees (“Seller Indemnified PersonParties”) from, against and if such in respect of all Losses suffered or incurred by the Seller Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, Parties to the extent arising out of such or resulting from (i) any breach of any of the representations or warranties (in each case, when made) of the Buyer in this Agreement or (ii) any breach of any of the covenants or agreements of the Buyer in this Agreement; provided, however, that the foregoing shall exclude any indemnification to any Seller Indemnified Party to the extent resulting from (x) the gross negligence, willful misconduct misconduct, or subjective bad faith, fraud of any Seller Indemnified Party or (y) acts or omissions of Buyer or any of its Affiliates taken (or not taken) upon written instructions from any Seller Indemnified Party (unless Buyer is otherwise liable for such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers Losses pursuant to the terms of this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified PersonAgreement); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.
Appears in 1 contract
Samples: Royalty Purchase Agreement (Ionis Pharmaceuticals Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentSubject to Sections 11.2 (regarding indemnification matters concerning Impositions) and 11.6, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party (includingincluding any other Indemnified Person), without limitationincluding Claims arising from the negligence of such Indemnified Person (but, relating in each case, not to the properties extent (1) such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction in a final nonappealable judgment, as opposed to have arisen from the gross negligence, negligence or willful misconduct imputed to such Indemnified Person; (2) disputes solely between or subjective among Indemnified Persons and not relating to or in connection with acts or omissions by the Lessee or any other Credit Party; (3) such Claims result from a claim brought by any Credit Party against an Indemnified Person for breach in bad faith of such Indemnified Person’s obligations hereunder or under any other Operative Agreement, and if such Indemnified Person is Credit Party has obtained a director, officer, employee, Affiliate or agent final and nonappealable judgment in its favor on such claim as determined by a court of a Lender or competent jurisdiction; (4) the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall Indemnity Provider was not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing given notice of the commencement of such litigation or proceeding, but subject claim and the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and opportunity to participate in the defense thereof, at its expense (except that each Credit Party shall remain liable to the extent such failure to give notice does not result in a loss of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified PersonCredit Party); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.or
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)
General Indemnity. Without limiting any other provision Subject to the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 13.4 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against13.5, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any other Person (but not to the extent such Claims arise from the gross negligence or willful misconduct of such Indemnified Person) in any way relating to or arising, or alleged (by any Person asserting such a Claim against an Indemnified Person) to arise, out of the execution, delivery, performance or enforcement of this Agreement, the Lease, any other Operative Agreement or on or with respect to any Property or any part thereof, including, without limitation, Claims in any way relating to or arising or alleged to arise out of (a) the properties financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or business of any Borrowerotherwise), or any default by other disposition of a Borrower in Property, or any part thereof, including the performance acquisition, holding or observance disposition of any representationinterest in any Property, warrantylease or agreement comprising a portion of any thereof; (b) any latent or other defect in any property whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any Environmental Claim, covenant or condition in this Agreement any violation of Environmental Laws, or any other Loan Document); provided, however, that such indemnity shall not apply loss of or damage to any such lossesproperty or the environment relating to any Property, claims, damagesthe Lease or the Indemnity Provider; (d) the Operative Agreements, or liabilities any transaction contemplated thereby; (e) any breach by the Lessee of any of its representations or related expenses determined by a court of competent jurisdiction warranties under the Operative Agreements to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person which it is a directorparty or failure by the Lessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) any personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent absolute liability in tort; (h) any easement, right, agreement or document referred to in Section 10.5 of a Lender this Agreement; or (i) any Lien on any Property (other than Liens created by the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableOperative Agreements). If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding) for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that, in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding30-day period, such Indemnified Person shall have endeavor, in such notice to the right Indemnity Provider, to employ separate counsel and to participate in inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present to give the notices referred to in this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such counsel with a conflict failure materially precludes the Indemnity Provider from contesting such Claim. If, within thirty (30) days of interest; receipt of such notice from the Indemnified Person (iior such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including, without limitation by pursuit of appeals) (provided, however, that (A) if such Claim can be pursued by the defendants in, Indemnity Provider on behalf of or targets of, any in the name of such litigation or proceeding include both an Indemnified Person and any Borrowerso long as such Claim, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf reasonable opinion of the Indemnified Person); (iii) Borrowers shall , does not have employed counsel satisfactory to such Indemnified Person in the exercise involve any possibility or criminal liability or any material risk of civil liability, the Indemnified Person's reasonable judgment , at the Indemnity Provider’s request, shall allow the Indemnity Provider to represent conduct and control the response to such Claim and (B) in the case of any Claim, the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person within a reasonable time after notice of the institution of Person, such litigation consent not to be unreasonably withheld, conditioned or proceedingdelayed; or (iv) Borrowers shall authorize such provided, however, that any Indemnified Person to employ may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim, (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party, except that the Indemnity Provider may not agree to any dismissal or settlement of, or other agreement in connection with, any claim without the prior written consent of such Indemnified Person, if such dismissal, settlement or agreement would require any admission or acknowledgment of any culpability or wrongdoing by such Indemnified Person or provides for any nonmonetary relief to be performed by such Indemnified Person. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 13.1 by way of indemnification or advance for the payment of any amount regarding such Claim other than expenses of the action relating to such Claim. Notwithstanding the foregoing provisions of this Section 13.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and no Indemnity Provider shall be permitted to respond to any separate but substantially similar Claim in its own name or related action in that of the same jurisdiction. Borrowers Indemnified Person unless (A) the Indemnity Provider shall not consent have agreed to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person), (D) in the case of a release from all liability Claim that must be pursued in respect the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim, (E) such claim is covered by insurance and (F) no Event of Default shall have occurred and be continuing. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or litigation. The agreements that of Borrowers in an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 2.22 13.1, unless there shall be have been a change in addition law (or interpretation thereof) and the Indemnified Person shall have received, at the Indemnity Provider’s expense, an opinion of independent counsel selected by the Indemnified Person and reasonably acceptable to any liability the Indemnity Provider stating that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten as a result of such change in law (10) days of written demand thereforor interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document(a) Company assumes liability for, Borrowers hereby jointly and severally indemnify each Lendershall indemnify, the Agent protect, save and their respective directorskeep harmless Operator and its agents, servants, officers, directors, employees, Affiliates attorneys, affiliates, successors and agents assigns (collectively, each an "Indemnified PersonsIndemnitee") against, from and agree to hold each such Indemnified Person harmless from, against any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, costs and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees legal expenses, of whatsoever kind and expensesnature, imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (i) the enforcement of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result terms of this Agreement Agreement; (ii) the Equipment, the Units or any part thereof during the period the Equipment or any Unit is in use by or the transactions contemplated hereby (possession of Company, including, without limitation, relating to with respect thereto, (1) Manufacture, design, purchase, acceptance, nonacceptance or rejection, ownership, registration, reregistration, deregistration, delivery, nondelivery, lease, sublease, assignment, possession, use or non-use, operation, maintenance, testing, repair, overhaul, condition, alteration, modification, addition, improvement, storage, replacement, repair, sale, substitution, return, abandonment, redelivery or other disposition of the properties Equipment, the Units or business any part thereof, (2) any claim or penalty arising out of violations of applicable laws by Company, (3) tort liability, whether or not arising out of the negligence of any BorrowerIndemnitee (whether active, passive or imputed), (4) death or property damage of passengers, shippers or others, (5) environmental control, noise or pollution, (6) any liens (other than Permitted Liens (as defined in the Loan Agreement)) in respect of the Equipment, the Units or any part thereof and (7) Company's possession or use of the Equipment, any Unit or any part thereof and (iii) any breach of or failure to perform or observe, or any default by a Borrower in the performance or observance of other noncompliance with, any representation, warranty, covenant or condition in agreement or other obligation to be performed by Company under this Agreement or the falsity of any other Loan Document)representation or warranty of Company in this Agreement; provided, however, that such indemnity Company shall not apply be required to indemnify any Indemnitee for loss or liability arising from acts or events which occur after the Equipment or any Unit has been returned to Operator in accordance with this Agreement, or for loss or liability resulting solely from the willful misconduct or gross negligence of such lossesIndemnitee.
(b) Notwithstanding anything to the contrary contained herein, claimsneither party shall be liable or responsible to the other party for any consequential, punitive, special, incidental or exemplary damages, or liabilities for loss of profits or related expenses determined revenues (collectively referred to as “Special Damages”) incurred by a court such party or its affiliated Persons that arise out of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant relate to this Section 2.22Agreement, regardless of whether any such Indemnified Person shall promptly notify Borrowers in writing claim arises under or results from contract, tort, or strict liability.
(c) The provisions of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation 14 shall survive the expiration or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers earlier termination of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforAgreement.
Appears in 1 contract
Samples: Loan Agreement (PBF Holding Co LLC)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, Lessee hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against such Indemnified Person by any third party (including, without limitation, relating but not to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, willful misconduct or subjective bad faith willful breach of such Indemnified PersonPerson or are otherwise solely attributable to acts or events occurring after the expiration of this Agreement or after the transfer of any Property to Lessee or a third party) in any way relating to or arising or alleged to arise out of the execution, and if delivery, performance or enforcement of this Agreement or any other Transaction Document or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, ordering, acquisition, acceptance, rejection, ownership, possession, design, construction, installation, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance repair, modification, condition, sale, return, repossession (whether by summary proceedings or otherwise), destruction, return or any other disposition of any Property or any Part thereof, including without limitation the acquisition, holding or disposition of any interest in any Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by such Indemnified Person or Lessee; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to any Property, this Agreement or Lessee; (d) the Transaction Documents, or any transaction contemplated thereby; (e) any breach by Lessee of any of its representations or warranties under the Transaction Documents to which Lessee is a directorparty or failure by Lessee to perform or observe any covenant or agreement to be performed by it under any Transaction Document; (f) the transactions contemplated hereby or by any other Transaction Document, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, such Indemnified Person shall promptly notify Borrowers death or property damage, including without limitation Claims based on strict or absolute liability in writing tort; and (h) any infringement Claims. All of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers indemnities contained in this Section 2.22 19 shall continue in full force and effect notwithstanding the expiration or other termination of the Term and are expressly made for the benefit of, and shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforenforceable by, each Indemnified Person.
Appears in 1 contract
Samples: Lease Agreement (Unifi Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentOwner hereby agrees to indemnify, Borrowers hereby jointly and severally indemnify on an after-tax basis, each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, save and keep harmless and shall pay on demand each such Indemnified Person harmless fromof them from (whether or not the transactions contemplated herein or in any of the other Operative Documents or the Pass Through Trust Agreements are consummated), any and all claims, damages Expenses and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesTaxes imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) the Operative Documents and any claimPermitted Lease, litigationor the enforcement of any of the terms of any thereof; or (B) the manufacture, investigation design, purchase, resale, acceptance or proceeding rejection of the Airframe or any Engine or Parts; or (C) the Aircraft (or any portion thereof) or any Engine whether or not such Indemnified Person installed on the Airframe or any airframe on which an Engine is a party theretoinstalled whether or not arising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, possession, use, non-use, operation, maintenance, modification, alteration, condition, sale, replacement, substitution, disposition, registration, reregistration or airworthiness of the Aircraft (or any portion thereof) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any damage to property or the properties environment, death or business injury to any person and any claim for patent, trademark or copyright infringement; or (D) the offer, sale, holding, transfer or delivery of the Equipment Notes or the Pass Through Certificates, whether before, on or after the applicable Issuance Date (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee, its successors, assigns, employees, directors, officers, servants and agents within the meaning of Section 15 of the Securities Act of 1933, as amended); or (E) the Pass Through Documents and each Pass Through Trust Agreement (and any amendments thereto), or the enforcement of any Borrower, or any default by a Borrower in of the performance or observance terms of any representation, warranty, covenant or condition in this Agreement or any other Loan Document)thereof; provided, howeverwith respect to an Indemnitee, that such the foregoing indemnity shall not apply extend to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, Expense to the extent resulting from or arising out of such gross negligence, willful misconduct one or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing more of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.following:
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject to the provisions of this Agreement or of any other Loan DocumentSection 11.7, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableapplicable Property. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting The Company agrees to indemnify and hold harmless each Indemnified Person against all or any claims, actions, judgments, liabilities, awards, demands, investigations or proceedings (in each case whether or not successful, compromised or settled) (each a Claim) threatened, brought, alleged, asserted, established, made or instituted against or which otherwise involve any Indemnified Person in any jurisdiction by any person whatsoever (including any regulatory or government agency), and against all losses, damages, liabilities, costs, charges or expenses (including properly incurred fees, disbursements and expenses of legal counsel) and any Tax (other provision than any stamp duty, stamp duty reserve tax (or related interest or penalties) in respect of which a payment has been made pursuant to the provisions of clause 8 of this Agreement or of Agreement, recoverable VAT incurred by the relevant Indemnified Person) (each a Loss) which any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless frommay suffer or incur (including, but not limited to, all Losses suffered or incurred in investigating, preparing for or disputing, providing evidence in connection with or defending any and all claims, damages and liabilities, including claims brought by Claim and/or in establishing its right to be indemnified pursuant to this clause 10.1 or to receive contribution pursuant to clause 12 and/or in seeking advice regarding any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding Claim (whether or not such Indemnified Person is a an actual or potential party theretoto such Claim or such Claim is defended or disputed successfully) relating or mitigating any Loss on its part or otherwise enforcing its rights under this Agreement or in any way related to any transactions, services or matters that are the subject or arise in connection with this indemnity, clause 12 or as a result of this Agreement settling any Claim), which in each case shall be additional and without prejudice to any rights which an Indemnified Person may have at common law or otherwise, if the Claim or Loss arises, directly or indirectly, out of, or is attributable to, or connected with, anything done or omitted to be done by any person (including the relevant Indemnified Person) in connection with the Offer or the transactions arrangements contemplated hereby by the Offer Documents (including, without limitation, relating or any amendment or supplement to the properties or business any of any Borrowerthem), or any default by a Borrower in the performance of them, or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, agreement relating to the extent Offer, prior to or after the date of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceedingAgreement including, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.limited to:
Appears in 1 contract
General Indemnity. Without limiting any other provision rights which any such Person may have hereunder or under applicable law, Seller hereby agrees to indemnify each of this Agreement or Purchaser, the Agent, the Banks, Enhancement Bank, SG, and each of their respective Affiliates, successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any other Loan Document, Borrowers hereby jointly and severally indemnify of the foregoing (each Lender, of the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, foregoing Persons being individually called an "Indemnified PersonsParty") against), forthwith on demand, from and agree to hold each such Indemnified Person harmless from, against any and all damages, losses, claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, liabilities and related costs and expenses, including reasonable counsel attorneys' fees and expenses, disbursements (all of the foregoing being collectively called "Indemnified Amounts") awarded against or incurred by such Indemnified Person any of them arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactionsTransaction Document or the transactions contemplated thereby or the use of proceeds therefrom, services including (without limitation) in respect of the ownership or matters funding of any Undivided Interest or in respect of any Receivable or any Timeshare Loan, excluding, however, (a) Indemnified Amounts that are have resulted from gross negligence or willful misconduct on the subject part of such Indemnified Party, (b) non-payment by any Obligor of an amount due and payable with respect to a Receivable due to the credit of such Obligor (except as otherwise specifically provided in this Agreement), (c) any violation by any Indemnified Party of any Requirement of Law, or arise (d) the operations or administration of any Indemnified Party generally. Without limiting the foregoing, Seller agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable, the failure of any information contained in a Periodic Report to be true and correct, or the failure of any other information provided by Seller, Servicer or any Originator with respect to Receivables, Related Security, Collections or any Transaction Document to be true and correct;
(ii) the failure of any representation or warranty or statement made or deemed made by Seller (or any officer thereof) under or in connection with any Transaction Document to have been true and correct in all respects when made;
(iii) the failure by Seller to comply with any applicable law, rule or regulation with respect to any Receivable or the related Timeshare Loan, or the nonconformity of any Receivable or the related Timeshare Loan with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in Purchaser an undivided fractional ownership interest, to the extent of each Undivided Interest owned by it hereunder, in the Pool Receivables and Related Security in, or purporting to be in, the Receivables Pool, free and clear of any Adverse Claim, other than an Adverse Claim arising solely as a result of this Agreement an act of Purchaser or the transactions contemplated hereby Agent, any assignee from Purchaser or the Agent, whether existing at the time of any Purchase or Reinvestment of such Undivided Interest or at any time thereafter;
(v) the failure to file, or any delay in filing, financing statements, Mortgages, assignments of Mortgage or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables, Timeshare Loans or Related Security in the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Receivable or related Timeshare Loan in the Receivables Pool (including, without limitation, relating a defense based on such Receivable or the related Timeshare Loan, Mortgage or Right-to-Use Agreement not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms); except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(vii) any failure of Sunterra, as Servicer or otherwise, to perform its duties or obligations in accordance with the properties or business provisions of any BorrowerArticle VIII, or any default by a Borrower failure of Seller to perform its duties or obligations in accordance with the performance applicable provisions of the Transaction Documents;
(viii) any claim involving environmental liability that arises out of or observance relates to Vacation Interest Property that is the subject of any representationReceivable or the Related Security;
(ix) any tax (other than income tax) or governmental fee or charge, warrantyand all interest and penalties thereon or with respect thereto, covenant and all reasonable out-of-pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or condition in this Agreement ownership of any Undivided Interest, or any other Loan Document)interest in the Receivables or in the related Vacation Interest; provided, however, that such indemnity shall not apply or
(x) any commingling of funds to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from which the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender Agent or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding Purchaser is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from entitled hereunder with any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforfunds.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers The Owner hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilitiesdisbursements, including claims brought by any shareholder or former shareholder of any Borrower, whatsoever kind and related expenses, including reasonable counsel fees and expensesnature (collectively called "Expenses") imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any lease or sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Liquidity Providers, the Intercreditor Agreement and the Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement or (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the properties meaning of Section 15 of the Securities Act of 1933, as amended); provided that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or business arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement or any Pass Through Trust Agreement or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this any of the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement or any other Pass Through Trust Agreement applicable to it including, without limitation, the creation or existence of a Loan Participant Lien or an Indenture Trustee's Lien (except to the extent such failure was caused directly by the failure of the Owner to perform any obligation under an Owner Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified PersonIndemnitee (or any member of the Related Indemnitee Group) (other than gross negligence imputed to such Indemnitee (or any member of the Related Indemnitee Group) solely by reason of its interest in the Aircraft), and if or (D) with respect to any Indemnitee, a disposition (voluntary or involuntary) by such Indemnified Person is a director, officer, employee, Affiliate Indemnitee of all or agent of a Lender or the Agent, then, to the extent any part of such gross negligenceIndemnitee's interest in the Airframe, willful misconduct any Engine or subjective bad faithin the Operative Documents other than during the continuance of an Event of Default under the Trust Indenture, or (E) any Tax whether or not the Owner is required to indemnify for such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers Tax pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which 7(b) hereof (it may have to any Indemnified Person, except being understood that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i7(b) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable hereof provides for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.Owner's
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentLessee assumes and agrees to indemnify, Borrowers hereby jointly defend and severally indemnify each Lenderkeep harmless Investor, the Agent Lessor and their successors and permitted assigns and transferees, and their respective directorsAffiliates, officers, employeesdirectors, Affiliates partners, shareholders, agents and employees (each an "Indemnitee" and collectively "Indemnitees" and the respective Affiliates, officers, directors, partners, shareholders, agents (collectivelyand employees of an Indemnitee are such Indemnitee's "Related Indemnitees"), "Indemnified Persons") against, on an After-Tax Basis from and agree to hold each such Indemnified Person harmless from, against any and all claimsClaims that may be sustained by, damages and liabilities, including claims brought by imposed on or asserted against any shareholder Indemnitee (whether because of an action or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred inaction by such Indemnified Person arising out of any claim, litigation, investigation Indemnitee or proceeding (otherwise and whether or not such Indemnified Person Indemnitee shall also be indemnified as to any such Claim by any other Person) (other than such Claims as may result from the gross negligence or willful misconduct of such Indemnitee or any Related Indemnitee thereof and other than taxes, related charges, assessments or withholdings of any nature (the sole provision for which is a party thereto) in Section 9 hereof)), relating to or arising out of (a) the Equipment or any transactionspart thereof or any interest therein, services (b) the Operative Documents or matters that are any other documents or instruments contemplated thereby, or payments made pursuant thereto or any other transactions contemplated thereby, and (c) the subject manufacture, construction, purchase, acceptance, rejection, ownership, acquisition, delivery, nondelivery, lease, sublease, charter, subcharter, preparation, installation, storage, maintenance, repair, transportation, transfer of title, abandonment, possession, rental, use, operation, condition, sale, return, importation, exportation or arise other application or disposition of all or any part of the Equipment, or any parts thereof, including without limitation (i) claims or penalties arising from any violation of law or strict liability in connection with tort by Lessee or as a result to the extent related to the possession, use or maintenance of this Agreement the Equipment during the Term, (ii) loss of or damage to any property or the transactions contemplated hereby environment from the Equipment or operation thereof (including, without limitation, all Claims associated with remediation, response, removal, corrective action, cleanup, treatment, compliance, restoration, abatement, encapsulation, containment, revegetation, monitoring, sampling, investigation, assessment, financial assurance, natural resource damages, the protection of wildlife and aquatic species and vegetation, the interference with or contamination of any wetland or body of water (whether surface or subsurface) or aquifer, and any relevant mitigative action under any Environmental Law) or death of or injury to any Person, in each case to the extent related to the possession, use or maintenance of the Equipment during the Term, (iii) any Claims resulting from or relating to the properties existence or business presence of any BorrowerHazardous Material at, in, on or under the Equipment, any parts thereof, or any default by a Borrower in the performance release, emission or observance discharge of any representationHazardous Material into the environment (including air, warrantywater vapor, covenant surface water, groundwater and land (whether surface or condition subsurface)), in each case to the extent related to the possession, use or maintenance of the Equipment during the Term, (iv) latent or other defects to the Equipment, whether or not discoverable, (v) any claim for patent, trademark or copyright infringement with respect to the Equipment, and (vi) the failure of Lessee to perform any of its obligations under this Agreement Lease or any other Loan Operative Document); provided, however, this Section 14(a) will not extend to any Claim:
(i) to the extent resulting from any sale, disposition or transfer by Lessor of any of its interest herein, in the Equipment or any document or instrument executed and delivered in connection herewith except for transfers, sales or assignments required by the terms hereof; or
(ii) to the extent such loss, claim or expense relates to acts or events or omissions not attributable to Lessee that occur after Lessee shall have returned the Equipment to Lessor in accordance with the terms of this Lease; or
(iii) to the extent such costs are Transaction Expenses required to be paid by Lessor pursuant to Section 23 hereof; or
(iv) that is for amounts provided for in Section 9 or for Taxes; or
(v) imposed on an Indemnitee to the extent attributable or arising out of any breach by such Indemnitee or any of its Related Indemnitees of the obligations or representations of such Indemnitee or its Related Indemnitees the Operative Documents. Indemnitees shall give Lessee prompt notice of any Claim hereby indemnified against; provided, however, that the failure to give such indemnity prompt notice shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, affect Lessee's obligations hereunder except to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably materially prejudices Borrowers' Lessee's ability to defend such litigation Claim or proceedingresults in Lessee's loss of the right to defend such Claim. Subject to the provisions of the following sentence, Lessee shall at it sole cost and expense be entitled to control, and shall assume full responsibility for, the defense of such Claim; provided that Lessee shall keep the Indemnitee which is the subject of such proceeding fully apprised of the status of such proceeding and shall provide such Indemnitee with all information with respect to such proceeding as such Indemnitee shall reasonably request. Notwithstanding any of the foregoing to the contrary, Lessee shall not be entitled to control and assume responsibility for the defense of such Claim if (1) a Default shall have occurred and be continuing, and the Indemnitee notifies Lessee that Lessee is no longer permitted to control the defense of such Claim, (2) such proceeding will involve any material danger of the sale, forfeiture or loss of, or the creation of any Lien (other than any Permitted Lien) on, the Equipment, (3) the amounts involved, in the good faith opinion of such Indemnitee, are likely to have a materially adverse effect on the business of such Indemnitee, (4) there exists an actual or potential conflict of interest that independent counsel shall have advised such Indemnitee that, under applicable conflict of law rules, it is advisable for such Indemnitee to retain control of such proceeding or (5) such Claim involves the possibility of criminal sanctions or liability to such Indemnitee. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers the circumstances described in clauses (1) through (5) of the commencement of such litigation or proceedingpreceding sentence, Borrowers the Indemnitee shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to control and assume responsibility for the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel Claim at the expense of BorrowersLessee. In addition, provided that Borrowers shall not be liable for the feesany Indemnitee, costs and expenses of more than one separate counsel at the same time for its own expense, may participate in any proceeding controlled by Lessee pursuant to this section. Lessee may in any event participate in all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdictionproceedings at its own cost. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers Nothing contained in this Section 2.22 14 shall be in addition deemed to require an Indemnitee to contest any Claim or to assume responsibility for or control of any judicial proceeding with respect thereto. Lessee shall not agree to the settlement of any claim, dispute or other proceeding giving rise to any claim for indemnification hereunder or make any admission of any liability that Borrowers may otherwise haveon behalf of any Indemnitee, without the prior written consent of such Indemnitee (such consent not to be unreasonably withheld in a non-criminal, civil matter). All amounts due under Nothing contained in this Section 2.22 14(a) shall be payable within ten (10) days construed as a guaranty by Lessee of written demand thereforany residual value or remaining life of any Item of Equipment.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction) in any way relating to have arisen from or arising or alleged to arise out of the gross negligenceexecution, willful misconduct delivery, performance or subjective bad faith enforcement of such Indemnified Personthis Agreement, and if such the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender or the Agent, thenabsolute liability in tort, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicablepermitted by Law. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes the Indemnity Provider from contesting such Claim, but only to the extent of such actual preclusion. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) at the Indemnity Provider's reasonable request, the Indemnified Person shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person promptly after demand and on an After Tax Basis all reasonable out-of-pocket costs that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after- tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnified Person and reasonably acceptable to the Indemnity Provided stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
Samples: Participation Agreement (Correctional Services Corp)
General Indemnity. Without limiting (a) The Lessee, whether or not any other provision of this Agreement the transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims arising from events occurring during the Basic Term following the Construction Period, any Renewal Term and thereafter which may be imposed on, incurred by or asserted against an Indemnified Person (whether because of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each an action or omission of such Indemnified Person harmless fromor otherwise, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is shall also be indemnified as to any such Claim by any other Person and whether or not such Claim arises or occurs prior to the Closing Date or after the Expiration Date, in any way relating to or arising or alleged to arise out of (i) the financing, refinancing, ground lease, purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, maintenance, modification, transportation, condition, operation, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, (ii) any latent or other defects in any Property whether or not discoverable by an Indemnified Person or the Lessee; (iii) a party thereto) violation of any Legal Requirement or Requirement of Law by the Lessee or relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement Property or the transactions contemplated hereby (includingby the Operative Agreements, without limitationincluding any violation of Environmental Laws, the Release, presence or use of Hazardous Substances on, at, under or emanating from any Property or other loss of or damage relating to any Property; (iv) the properties or business of any BorrowerOperative Agreements, or any default transaction contemplated thereby; (v) any breach by a Borrower in the performance or observance Lessee of any representation, warranty, of its representations or warranties under the Operative Agreements or failure by the Lessee to perform or observe any covenant or condition agreement to be performed by it under any of the Operative Agreements or under any other contract or agreement by which the Lessee is bound; (vi) the invalidation of Lessee's insurance policies related to any Property; (vii) personal injury, death or property damage relating to any Property, including Claims based on strict liability in this Agreement tort; (viii) the existence of any Lien on or with respect to any Property, the Improvements, the Equipment, any Basic Rent or Supplemental Rent, title thereto, or any interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of any Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee, the Lessor, the Construction Agent, or any of their contractors or agents or by reason of the financing of any Property or any personality or equipment purchased or leased by the Lessee or Improvements or Modifications constructed by the Lessee, except Lessor Liens and Liens in favor of the Agent or the Lessor; and (ix) the Transactions contemplated hereby or by any other Loan Document)Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited 37 44 transaction described in Section 4975(c) of the Code; but in any event excluding (x) Claims to the extent such Claims arise solely out of events occurring after the expiration of the Term and after the Lessee's discharge of all its obligations under the Lease and the other Operative Agreements or (y) as to any Indemnified Person, any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnified Person. The Lessee shall be entitled to control, and shall assume full responsibility for the defense of, any Claim; provided, however, that any Indemnified Person named in such indemnity Claim may retain separate counsel reasonably acceptable to the Lessee at the expense of the Lessee in the event of and to the extent of a conflict; provided, further, that the Lessee shall be required to pay for no more than one such separate counsel in connection with each Claim for all Indemnified Persons. The Lessee and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such notice by an Indemnified Person shall not apply be a condition to the Lessee's obligations under this SECTION 11.1, except to the extent failure to give such notice materially prejudices the Lessee's rights hereunder. After an Indemnified Person has been fully indemnified for a Claim pursuant to this SECTION 11.1, and so long as no Event of Default shall have occurred and be continuing, the Lessee shall be subrogated to any right of such Indemnified Person with respect to such Claim. None of the Indemnified Persons shall settle a Claim without the consent of the Lessee, which consent shall not be unreasonably withheld or delayed.
(b) The Construction Agent agrees to assume liability for, and to indemnify, protect, defend, save and keep harmless the Lessor, the Trust Companies and the Holders (the "Lessor Parties") on an After Tax Basis (which right to indemnity may be assigned by the Lessor Parties), from and against any and all Claims (including Losses (as defined in SECTION 11.10)) arising from events occurring during the Construction Period that may be imposed on, incurred by or asserted against the Lessor Parties, whether or not the Lessor Parties shall also be indemnified as to any such lossesClaim by any other Person and whether or not such claim arises or accrues prior to the Closing Date, claimsin any way relating to or arising out of the circumstances described in clauses (i) through (ix) of SECTION 11.1(A), damagesand subject to exceptions (x) and (y) of SECTION 11.1(A), but only to the extent (1) such Claims result from acts or omissions of the Construction Agent or any Lessee Person and (2)(A) are not related to construction completion, or liabilities (B) if such Claims are related to construction completion, the Lessee's recourse liability for such Claims shall not exceed the Construction Period Maximum Recourse Amount. The Construction Agent acknowledges and agrees in this connection that the Property or related expenses determined by Properties, as applicable, are in its control and possession during the Construction Period, that it is responsible as Construction Agent for the acts and omissions of its subcontractors and agents and all Lessee Persons and that it has agreed to maintain each Property free from injury or mishap to third persons; provided, however, that the occurrence of injury or mishap to third persons shall not give rise to an Event of Default.
(c) Nothing contained in this Section 11.1 shall prevent Lessee from bringing a court separate action against any Indemnified Person for any breach of competent jurisdiction to have arisen from the contract, gross negligence, willful misconduct or subjective bad faith other causes of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving permitted by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforOperative Agreements.
Appears in 1 contract
General Indemnity. Without limiting The Company shall pay, indemnify, and hold each Bank, the Administrative Agent and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any other provision and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses or disbursements (including reasonable fees and out-of-pocket expenses of counsel and the allocated cost of internal counsel) of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement or of and any other Loan DocumentDocuments, Borrowers or the transactions contemplated hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") againstthereby, and agree with respect to hold each such Indemnified Person harmless fromany investigation, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation litigation or proceeding (including any Insolvency Proceeding or appellate proceeding) related to this Agreement or the Loans, or the use of the proceeds thereof, whether or not such any Indemnified Person is a party thereto) relating to any transactionsthereto (all the foregoing, services or matters that are collectively, the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document"Indemnified Liabilities"); provided, however, that such indemnity the Company shall not apply have no obligation hereunder to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction Indemnified Person with respect to have arisen Indemnified Liabilities (i) arising from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if Person (ii) with respect to judicial proceedings commenced against such Indemnified Person is a directorby any holder of the debt or equity securities of such Indemnified Person based solely on the rights afforded such holder in its capacity as such, officerand (iii) with respect to judicial proceedings commenced solely against such Indemnified Person by another Bank, employee, Affiliate Assignee or agent of a Lender or the Agent, then, Participant to the extent based on a cause of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought action against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person and not the Company or any Restricted Subsidiary. The obligations in this Section 10.5 shall promptly notify Borrowers in writing survive payment of all other Obligations. The Company shall have the right to undertake, conduct and control through counsel of its own choosing (which counsel shall be acceptable to the Indemnified Persons acting reasonably) and at the sole expense of the commencement Company, the conduct and settlement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified PersonLiabilities, except and the Indemnified Person shall cooperate with the Company in connection therewith; provided that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Company shall permit the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such conduct and settlement through counsel chosen by the Indemnified Person, to assume but the defense fees and expenses of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to shall be borne by the Indemnified Person in the exercise of its reasonable judgmentPerson. Notwithstanding the election of Borrowers to assume foregoing, the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceedingits own counsel, and Borrowers shall bear the reasonable fees, costs fees and expenses of such separate counsel shall be at the Company's costs and expense if (i) the use interests of the Company and the Indemnified Person become adverse in any such claim or course of action; provided, however, the Company, in such event, shall only be liable for the reasonable legal expenses of one counsel chosen by Borrowers to represent for all of such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers Persons. The Company shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry settlement of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall action effected without its prior written consent, such consent not to be in addition to any liability that Borrowers may otherwise haveunreasonably withheld. All amounts due owing under this Section 2.22 10.5 shall be payable paid within ten (10) 30 days of written demand thereforafter demand.
Appears in 1 contract
Samples: Reducing Revolving Credit Agreement (Cinemark Usa Inc /Tx)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentThe Lessee, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person in any way relating to or arising or alleged to arise out of (includinga) the financing, without limitationrefinancing, ground lease, purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, maintenance, modification, transportation, condition, operation, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of the Property or any part thereof, (b) any latent or other defects in any property whether or not discoverable by an Indemnified Person or the Lessee; (c) a violation of any Legal Requirement or Requirement of Law, including any violation of Environmental Laws, the Release, presence or use of Hazardous Substances on, at, under or emanating from the Property or other loss of or damage relating to the properties or business of any BorrowerProperty; (d) the Operative Agreements, or any default transaction contemplated thereby; (e) any breach by a Borrower in the performance or observance Lessee of any representation, warranty, of its representations or warranties under the Operative Agreements or failure by the Lessee to perform or observe any covenant or condition agreement to be performed by it under any of the Operative Agreements; (f) the invalidation of Lessee's insurance policies related to the Property; (g) personal injury, death or property damage relating to the Property, including Claims based on strict liability in this Agreement tort; (h) the existence of any Lien on or with respect to the Property, the Improvements, the Equipment, any Basic Rent or Supplemental Rent, title thereto, or any interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee, the Lessor, or any of their contractors or agents or by reason of the financing of the Property or any personally or equipment purchased or leased by the Lessee or Improvements or Modifications constructed by the Lessee, except Lessor Liens and Liens in favor of the Agent or the Lessor; and (i) the Transactions contemplated hereby or by any other Loan Document)Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; but in any event excluding (x) Claims to the extent such Claims arise solely out of events occurring after the expiration of the Term and after the Lessee's discharge of all its obligations under the Lease and the other Operative Agreements or (y) as to any Indemnified Person, any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnified Person. The Lessee shall be entitled to control, and shall assume full responsibility for the defense of, any Claim; provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent named in such Claim may retain separate counsel reasonably acceptable to the Lessee at the expense of a Lender or the Agent, then, Lessee in the event of and to the extent of an actual conflict. The Lessee and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such gross negligence, willful misconduct or subjective bad faith, such indemnity notice by an Indemnified Person shall not apply be a condition to the Lessee's obligations under this Section 12.1, except to the extent failure to give such Lender or notice materially prejudices the Agent, as applicableLessee's rights hereunder. If any litigation or proceeding is brought against any After an Indemnified Person in respect of which indemnity may be sought against Borrowers has been fully indemnified for a Claim pursuant to this Section 2.2212.1, and so long as no Event of Default shall have occurred and be continuing, the Lessee shall be subrogated to any right of such Indemnified Person shall promptly notify Borrowers in writing of the commencement of with respect to such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delayClaim. Failure None of the Indemnified Person to timely notify Borrowers Persons shall settle a Claim without the consent of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22Lessee, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers consent shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar unreasonably withheld or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefordelayed.
Appears in 1 contract
General Indemnity. Without limiting Subject to Sections 11.2 (regarding indemnification matters concerning Impositions) and 11.6, whether or not any of the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party (including any other provision Indemnified Person), including Claims arising from the negligence of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from(but, in each case, not to the extent (1) such Claims arise from the gross negligence or willful misconduct of such Indemnified Person itself, as determined by a court of competent jurisdiction in a final nonappealable judgment, as opposed to gross negligence or willful misconduct imputed to such Indemnified Person; (2) disputes solely between or among Indemnified Persons and not relating to or in connection with acts or omissions by the Lessee or any and all claims, damages and liabilities, including claims other Credit Party; (3) such Claims result from a claim brought by any shareholder or former shareholder Credit Party against an Indemnified Person for breach in bad faith of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out Person’s obligations hereunder or under any other Operative Agreement, if such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of any claimcompetent jurisdiction; (4) the Indemnity Provider was not given notice of the subject claim and the opportunity to participate in the defense thereof, litigationat its expense (except that each Credit Party shall remain liable to the extent such failure to give notice does not result in a loss of such Credit Party); or (5) the same results from a compromise or settlement agreement entered into without the consent of the Indemnity Provider, investigation or proceeding (which shall not be unreasonably withheld), whether or not such Indemnified Person shall also be indemnified as to any such Claim by any other Person and whether or not such Claim is initiated after the Termination Date, so long as such Claim arises out of an act or omission (or other circumstance or condition of any kind or description) which arose or occurred prior to the Termination Date, in any way relating to or arising or alleged to relate to, or arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease, the Agency Agreement or any other Operative Agreement or on or with respect to the Property or any component thereof, including Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of the Property or any part thereof, including the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in the Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any violation or alleged violation of law or in tort (strict liability or otherwise); (d) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to the Property; (e) any violation of or noncompliance with (or alleged violation or noncompliance with) any Environmental Laws, any Environmental Claims or any loss of or damage to any property or the environment relating to the Property, the Lease or the Indemnity Provider; (f) the Operative Agreements, or any transaction contemplated thereby (including the formation, continuance, operation and ultimate dissolution and liquidation of the Lessor) or any amendment, CHAR1\1917164v13 modification or waiver thereof or the exercise of remedies under any Operative Agreement following the occurrence and continuance of any Event of Default; (g) any breach by the Indemnity Provider, the Construction Agent or any Guarantor of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider, the Construction Agent or any Guarantor is a party theretoor failure by the Indemnity Provider, the Construction Agent or any Guarantor to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (h) relating the making of any Modifications in violation of the Operative Agreements or any standards imposed by any insurance policies required to be maintained by the Lessee pursuant to the Lease which are in effect at any transactionstime with respect to the Property or any part thereof; (i) any Claim for patent, services trademark or matters that are copyright infringement; (j) the subject transactions contemplated hereby or arise by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (k) personal injury, death or property damage, including Claims based on strict or absolute liability in tort; (l) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Property; (m) the retaining or employment of any broker, finder or financial advisor by any Credit Party to act on its behalf in connection with or as a result of this Agreement or the transactions contemplated hereby other Operative Agreements; (including, without limitation, relating n) Claims arising from any public improvements with respect to the properties Property resulting in any change or business of special assessments being levied against the Property or any Borrowerplans to widen, modify or realign any street or highway adjacent to the Property, or any default Claim for utility “tap-in” fees; (o) except in all cases for the existence of Lessor Liens and Liens created under the Operative Agreements in favor of any Financing Party, the existence of any Lien on or with respect to the Property, the Improvements or any Equipment relating thereto, title thereto, any interest therein or on any Basic Rent or Supplemental Rent, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee or the Lessor or any predecessor in title, or any of its contractors or agents or by reason of the financing of any personalty or equipment purchased or leased by the Lessee or the Lessor or any predecessor in title or Modifications constructed by the Lessee. If a Borrower written Claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including a written notice of such proceeding), for any Claim, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that in the performance or observance case of any representationsuch Claim, warrantyif action shall be required by law or regulation to be taken prior to the end of such period of thirty (30) days, covenant or condition such Indemnified Person shall endeavor to, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this Agreement sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes in any material respect the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including by pursuit of appeals) by, in the sole discretion of the Person conducting and controlling such action (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time (provided, however, that (A) if such Claim, in the Indemnity Provider’s reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control the CHAR1\1917164v13 response to such Claim unless such Claim cannot be pursued independently from any other Loan Documentclaim involving such Indemnified Person or unless such Claim is unrelated to the Property or the transactions contemplated by the Operative Agreements and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may require the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld); provided, however, that any Indemnified Person may retain separate counsel at the expense of the Indemnity Provider if, in the written opinion of counsel to the Indemnified Person reasonably acceptable to the Indemnity Provider (the expense of which opinion shall be paid by the Indemnity Provider), use of counsel of the Indemnity Provider’s choice would be expected to give rise to a conflict of interest between such Indemnified Person and the Indemnity Provider). The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim (not including the expenses of the contest). Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not apply be required to take any action and the Indemnity Provider shall not be permitted to respond to any Claim in its own name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed in writing to pay and shall pay to such lossesIndemnified Person on demand and on an After Tax Basis all reasonable costs, claimslosses and expenses that such Indemnified Person actually incurs in connection with such Claim, damagesincluding all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed in writing to indemnify such Indemnified Person in respect of the Claim if and to the extent the contest is not successful, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or liabilities any part thereof or related expenses determined interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability or civil penalty or risk of sale, forfeiture or loss of or the creation of any Lien (other than a Permitted Lien) on the Property, (C) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-Tax cost to such Indemnified Person) prior to the date such payment is due, (D) in the case of an appeal of an adverse determination respecting a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to pursue such an appeal, and (E) no Default or Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, pursuant to the extent contest provisions of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.2211.1, such unless there shall have been a change in Law (or interpretation thereof) and the Indemnified Person shall promptly notify Borrowers in writing have received, at the Indemnity Provider’s expense, an opinion of independent counsel selected by the commencement Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such litigation change in Law (or proceedinginterpretation thereof), but it is more likely than not that the omission so Indemnified Person will prevail in such contest. In no event shall the Indemnity CHAR1\1917164v13 Provider be permitted to notify Borrowers shall not relieve Borrowers from adjust or settle any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure Claim without the consent of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case extent any such litigation adjustment or proceeding shall be brought against settlement involves, or is reasonably likely to involve, any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation performance by or proceeding, Borrowers shall be entitled to participate in such litigation adverse admission by or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory respect to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers Lessee hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, disbursements (including reasonable counsel legal fees and expensesexpenses and Transaction Expenses to the extent not required to be paid by the Owner Trustee or the Owner Participant pursuant to Section 16 hereof but excluding internal costs and expenses such as salaries and overhead), of whatsoever kind and nature (collectively called "Expenses") imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any sublease or sub-sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Primary Liquidity Provider, the Intercreditor Agreement and the Primary Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement, (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the meaning of Section 15 of the Securities Act of 1933, as amended) or (E) the offer or sale of any interest in the Trust Estate or the Trust Agreement or any similar interest with respect to the properties Aircraft on or business prior to the Delivery Date; provided that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Primary Liquidity Facilities or any Pass Through Trust Agreement or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this Agreement any of the Operative Documents, the Intercreditor Agreement, the Primary Liquidity Facilities or any other Pass Through Trust Agreement applicable to it including, without limitation, the creation or existence of a Lessor Lien (including for this purpose Liens which would be Lessor Liens but for the proviso in the definition of Lessor Liens), a Loan Participant Lien or an Indenture Trustee's Lien (except to the extent such failure was caused directly by the failure of Lessee to perform any obligation under a Lessee Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate Indemnitee (or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing member of the commencement of such litigation or proceeding, but the omission so Related Indemnitee Group) (other than gross negligence imputed to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.such
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
General Indemnity. Without limiting The Company shall indemnify the Lenders and the Agent and hold them harmless from any other provision liability, loss or damage resulting from the violation by the Company of this Agreement Section 2.4. In addition, the Company shall indemnify each Lender, the Agent, the Syndication Agent, each of the Lenders' or of the Agent's or the Syndication Agent's directors, officers, employees, agents, attorneys, accountants, consultants and each Person, if any, who controls any other Loan Document, Borrowers hereby jointly and severally indemnify Lender or the Agent (each Lender, the Agent and their respective each of such directors, officers, employees, Affiliates agents, attorneys, accountants, consultants and agents (collectively, control Persons is referred to as an "Indemnified PersonsParty") against, and agree to hold each such Indemnified Person of them harmless from, from and against any and all claims, damages and damages, loss, liabilities, including claims brought by any shareholder or former shareholder of any Borrower, cost and related expenses, reasonable expenses (including reasonable counsel fees and expenses, incurred by such disbursements of counsel with whom any Indemnified Person arising out Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any claim, litigation, investigation Indemnified Party may incur or proceeding (whether or not such which may be asserted against any Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise Party in connection with (a) the Indemnified Party's compliance with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business contest of any Borrowersubpoena or other process issued against it in any proceeding involving the Company, any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries, any of the Restricted Affiliates or their Affiliates, or any default by a Borrower in officer, director or employee thereof, (c) the performance existence or observance exercise of any representationsecurity rights with respect to the Credit Security in accordance with the Credit Documents, warrantyor (d) this Agreement, covenant or condition in this Agreement any other Credit Document or any other Loan Document)transaction contemplated hereby or thereby or the proposed use of proceeds thereof; provided, however, that such the foregoing indemnity shall not apply (i) to litigation commenced by the Company against the Lenders or the Agent or the Syndication Agent which seeks enforcement of any of the rights of the Company hereunder or under any other Credit Document and is determined adversely to the Lenders or the Agent or the Syndication Agent in a final nonappealable judgment or (ii) to the extent such losses, claims, damages, or liabilities or related and expenses determined by a court of competent jurisdiction to have arisen result from the Indemnified Party's own gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicablemisconduct. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforTHE COMPANY EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 1 contract
Samples: Credit Agreement (Element K Corp)
General Indemnity. Without limiting any other provision rights which any such Person may have hereunder or under applicable Law, each Seller Party, jointly and severally, hereby agrees to indemnify and hold harmless Buyer, Buyer’s Affiliates and all of this Agreement or their respective successors, transferees, participants and assigns, and all officers, members, managers, directors, shareholders, employees and agents of any other Loan Documentof the foregoing (each an “Indemnified Person”), Borrowers hereby jointly from and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, against any and all damages, losses, claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, liabilities and related documented out-of-pocket costs and expenses, including reasonable counsel external attorneys’ fees and expensesdisbursements and all costs and expenses incurred, incurred by such including reasonable external attorneys’ fees and disbursements, in connection with the enforcement of this provision (all of the foregoing being collectively referred to as “Indemnified Person Amounts”) arising out of or resulting from this Framework Agreement or any other Transaction Agreement, any of the transactions contemplated thereby, or the ownership, maintenance or purchasing of the Purchased Note, or any actions or inactions of any Vistra Party. Without limiting or being limited by the foregoing, each Seller Party, jointly and severally, shall pay on demand to each Indemnified Person any and all amounts necessary to indemnify the Indemnified Person from and against any and all Indemnified Amounts relating to or resulting from any of the following:
(i) the transfer by such Seller Party of any interest in the Purchased Note or any proceeds thereof, other than in connection with Transactions entered into with Buyer pursuant to the Transaction Agreements;
(ii) any representation, warranty or statement made or deemed made by such Seller Party (or any of its officers) under or in connection with this Framework Agreement, any of the other Transaction Agreement, any Information Package, Purchase Report or any other information or report delivered by or on behalf of such Seller Party pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iii) the failure of such Seller Party, the Seller Party Agent or the Securitization Servicer to comply with the terms of any Transaction Agreement, the Seller Note, any Securitization Documents or any applicable Law, or the nonconformity of the Seller Note with any such applicable Law;
(iv) the lack of an enforceable ownership interest or a first priority perfected security interest in the Purchased Note transferred by such Seller Party, or purported to be transferred by such Seller Party, to Buyer pursuant to the Transaction Agreements against all Persons (including any bankruptcy trustee or similar Person);
(v) any attempt by any Person to void the transfers by such Seller Party contemplated hereby under statutory provisions or common law or equitable action;
(vi) the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable Laws with respect to the Purchased Note transferred by such Seller Party, or purported to be transferred by such Seller Party, to Buyer pursuant to the Transaction Agreements, whether as of the applicable Purchase Date or at any subsequent time;
(vii) any dispute, claim, litigationoffset, investigation defense (other than discharge in bankruptcy), or other similar claim or defense of the Receivables Entity to the payment when due of the Purchased Note transferred, or purported to be transferred, by such Seller Party to Buyer pursuant to the Transaction Agreements (including a defense based on the Purchased Note not being a legal, valid and binding obligation of the Receivables Entity enforceable against it in accordance with its terms);
(viii) any failure of such Seller Party or the Securitization Servicer to perform any of its duties or obligations arising under or in connection with the Purchased Note in accordance with the provisions thereof or of any of the other Securitization Facility Documents;
(ix) any suit or claim related to the Purchased Note transferred by such Seller Party, or purported to be transferred by such Seller Party, to Buyer pursuant to the Transaction Agreements;
(x) any investigation, litigation or proceeding (whether actual or not threatened) related to this Framework Agreement or any other Transaction Agreement or the use of proceeds of any purchase hereunder or in respect of the Purchased Note;
(xi) any failure of such Indemnified Person is a party theretoSeller Party or Seller Party Agent to comply with its covenants, obligations and agreements contained in this Framework Agreement or any other Transaction Agreement;
(xii) relating to any transactionscivil penalty or fine assessed by OFAC or any other Governmental Authority administering any anti-corruption law or Sanctions, services or matters that are the subject or arise and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with or defense thereof by, any Indemnified Person in connection with the Transaction Agreements as a result of this Agreement any action of any Seller Party or the transactions contemplated hereby any of its respective Affiliates;
(including, without limitation, relating xiii) any Taxes (other than Excluded Taxes) imposed upon any Indemnified Person or upon or with respect to the properties Purchased Note transferred by such Seller Party, or business purported to be transferred by such Seller Party, to Buyer pursuant to the Transaction Agreements arising by reason of the purchase or ownership of the Purchased Note (or of any Borrowerinterest therein);
(xiv) any inability of such Seller Party to transfer the Purchased Note as contemplated under the Transaction Agreements; or
(xv) the violation or breach by such Seller Party or Seller Party Agent of any confidentiality provision, or any default by a Borrower in the performance or observance of any representationsimilar covenant of non-disclosure, warranty, covenant or condition in this Agreement or any other Loan Document)with respect to the Purchased Note; provided, however, that such indemnity no Seller Party shall not apply be required to indemnify any such losses, claims, damages, or liabilities or related expenses Indemnified Person to the extent of any amounts are determined by a court of competent jurisdiction by final and nonappealable judgment to have arisen resulted from the fraud, gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject to the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 10.4 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against10.5, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any other Person (including Claims resulting from an Indemnified Party’s ordinary negligence, but not including Claims to the extent such Claims arise from the gross negligence or willful misconduct of such Indemnified Person) in any way relating to or arising, or alleged (by any Person asserting such a Claim against an Indemnified Person) to arise, out of the execution, delivery, performance or enforcement of this Agreement, the Lease, any other Operative Agreement or on or with respect to any Property or any part thereof, including, without limitation, Claims in any way relating to or arising or alleged to arise out of (a) the properties financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or business of any Borrowerotherwise), or any default by other disposition of a Borrower in Property, or any part thereof, including the performance acquisition, holding or observance disposition of any representationinterest in any Property, warrantylease or agreement comprising a portion of any thereof; (b) any latent or other defect in any property whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any Environmental Claim, covenant or condition in this Agreement any violation of Environmental Laws, or any other Loan Document); provided, however, that such indemnity shall not apply loss of or damage to any such lossesproperty or the environment relating to any Property, claims, damagesthe Lease or the Indemnity Provider; (d) the Operative Agreements, or liabilities any transaction contemplated thereby; (e) any breach by the Lessee of any of its representations or related expenses determined by a court of competent jurisdiction warranties under the Operative Agreements to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person which it is a directorparty or failure by the Lessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) any personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; (h) any easement, right, agreement or document referred to this in Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of 7.5; or (i) any Lien on any Property (other than Liens created by the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgmentOperative Agreements). Notwithstanding the election of Borrowers to assume foregoing, during the defense of such litigation or proceedingConstruction Term, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel Claims with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent respect to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 Expansion Property shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this governed by Section 2.22 shall be payable within ten (10) days of written demand therefor.3.3
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentBorrower shall indemnify, Borrowers hereby jointly on an after-tax basis, defend and severally indemnify each hold harmless Agent and Lender, the Agent and their respective officers, directors, officers, employees, Affiliates agents and agents affiliates (collectively, "Indemnified Persons") againstin connection with any expenses, and agree to hold each such Indemnified Person harmless fromlosses, any and all claims, damages and liabilitiesor liabilities to which Agent, including claims brought by Lender or such Indemnified Persons may become subject (other than taxes, for which the provisions of Section 9(b) shall apply instead), insofar as such expenses, losses, claims, damages or liabilities (or actions or other proceedings commenced or threatened in respect thereof) arise out of the transactions referred to in this Loan Agreement or arise from any shareholder use or former shareholder intended use of the proceeds of the Advances, or in any Borrowerway arise out of activities of Borrower that violate environmental laws, and related expensesto reimburse Agent, including Lender and each Indemnified Person, upon their demand, for any reasonable counsel fees and expenseslegal or other out-of-pocket expenses incurred in connection with investigating, incurred by defending or participating in any such Indemnified Person arising out of any loss, claim, litigationdamage, investigation liability, or proceeding action or other proceeding, whether commenced or threatened (whether or not Agent or Lender or any such Indemnified Person person is a party thereto) relating to any transactions, services action or matters proceeding out of which any such expense arises); provided that are nothing in this Section shall obligate Borrower to pay the subject or arise normal expenses of Lender in connection with or as a result the administration of this Loan Agreement (or the transactions contemplated hereby (includingissuance of any Equipment Note or the making of any Advance, without limitation, relating in each case after the Closing Date) in the absence of pending or threatened litigation or other proceedings or the claims or threatened claims of others and then only to the properties extent arising therefrom. Notwithstanding the foregoing, Borrower shall have no obligation hereunder to an Indemnified Person with respect to indemnified liabilities which have resulted from the gross negligence, bad faith or business willful misconduct of any Borrowersuch Indemnified Person, as determined by a final and nonappealable judgment by a court of competent jurisdiction, or any default which have resulted from a claim brought by Borrower against an Indemnified Person for breach in bad faith of such Indemnified Person’s obligations hereunder in which Borrower has obtained a Borrower final and nonappealable judgment in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that its favor on such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses claim as determined by a court of competent jurisdiction jurisdiction. In the case of an investigation, litigation or proceeding to have arisen from which the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faithindemnity in this paragraph applies, such indemnity shall be effective whether or not apply to such Lender or the Agentinvestigation, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets ofBorrower, any such litigation of Borrower’s equity holders or proceeding include both creditors, an Indemnified Person and or any Borrowerother person or entity, and such whether or not an Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within is otherwise a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforparty thereto.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Computer Sciences Corp)
General Indemnity. Without limiting (i) Whether or not any other provision of the transactions contemplated by this Agreement or of any other Loan Documentare consummated, Borrowers hereby jointly Borrower shall indemnify, protect, defend, and severally indemnify hold harmless each LenderIndemnitee from, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless fromin respect of, and shall pay on an After-Tax Basis, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder Expenses of any Borrower, and related expenses, including reasonable counsel fees and expenseskind or nature whatsoever that may be imposed on, incurred by such Indemnified Person by, or asserted against any Indemnitee, relating to, resulting from, or arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with any one or as a result more of this Agreement the following:
(1) the Operative Agreements or any of the transactions contemplated hereby or thereby or the enforcement of any of the Operative Agreements during the existence of a Default;
(2) (aa) any claim or penalty arising out of violations of applicable Laws by Borrower, (bb) any Liens in respect of the Collateral, (cc) tort liability whether or not arising out of the negligence of any Indemnitee (whether active, passive or imputed) and (dd) the offer, sale or delivery by Borrower of any Loan Certificates issued on any Borrowing Date; and
(3) any breach of or failure to perform or observe, or any other noncompliance with, any covenant, agreement, or other obligation to be performed by Borrower under any Operative Agreement to which it is party or the falsity of any representation or warranty of Borrower in any Operative Agreement to which it is party, including, without limitation, relating any Default or Event of Default under any of the Operative Agreements.
(ii) Notwithstanding anything in Section 10(a)(i), Borrower shall not be required to indemnify, protect, defend, or hold harmless any Indemnitee pursuant to Section 10(a)(i) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 10(c);
(2) to the properties extent attributable to any Transfer (voluntary or business involuntary) by or on behalf of such Indemnitee of any BorrowerLoan Certificate, Commitment or interest therein, except as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 10(a)(ii)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Collateral or being a party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty, of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure, by such Indemnitee or any Related Indemnitee, to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any default Operative Agreement;
(6) to the extent attributable to the offer or sale, by a Borrower such Indemnitee or any Related Indemnitee, of any interest in the performance Loan Certificates, or observance its Commitment, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any representationapplicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, warrantyto the extent attributable to the authorization or giving or withholding of any future amendments, covenant supplements, waivers, or condition in this Agreement consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other Loan Documentthan Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 10(a); provided, however, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that such indemnity shall not apply to any such losses, claims, damages, Person is an Affiliate or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith employer of such Indemnified PersonIndemnitee, and if such Indemnified Person is a director, officer, employee, Affiliate agent, or agent servant of such Indemnitee or any such Affiliate.
(iii) The provisions of this Section 10(a) constitute a Lender separate agreement with respect to each Indemnitee, and is enforceable directly by each such Indemnitee.
(iv) If an Indemnitee makes a claim for any Expense indemnifiable under this Section 10(a), such Indemnitee shall give prompt written notice thereof to Borrower. Notwithstanding the foregoing, any Indemnitee’s failure to notify Borrower as provided in this Section 10(a)(iv), or in Section 10(a)(v), shall not release Borrower from any of its obligations to indemnify such Indemnitee hereunder, except to the Agentextent that such failure results in an additional Expense to Borrower (in which event Borrower shall not be responsible for such additional Expense) or materially impairs Borrower’s ability to contest such claim.
(1) If any action, thensuit, or proceeding for which Borrower is responsible under this Section 10(a) is brought against any Indemnitee, such Indemnitee shall notify Borrower of the commencement thereof, and Borrower may, at its expense, participate in and, to the extent that it so desires (subject to the provisions of the following paragraph), assume and control the defense thereof and, subject to Section 10(a)(v)(3), settle or compromise it.
(2) Borrower or its insurer(s) shall have the right, at its or their cost and expense, to investigate and the right in Borrower’s sole discretion, acting through counsel reasonably satisfactory to the respective Indemnitee, if Borrower has acknowledged in writing that it will indemnify such Indemnitee for such Expense (except that such acknowledgment does not apply if it is determined that Borrower is not liable hereunder), (A) in any judicial or administrative proceeding that involves an Expense and other claims which do not involve such Indemnitee, to assume responsibility for and control of the defense thereof, (B) in any judicial or administrative proceeding that involves an Expense and other claims against such Indemnitee related or unrelated to the transactions contemplated by the Operative Agreements, (x) to assume responsibility for and control of the defense of such gross negligenceExpense to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its reasonable efforts to obtain such severance) or (y) if such Expense is not severable from other claims that are material to such Indemnitee in relation to the Loan Certificates held by such Indemnitee, willful misconduct to assume responsibility for and control of the defense of such Expense if such assumption would not, in such Indemnitee’s reasonable judgment, prejudice or subjective bad faithimpair in any material respect, such indemnity Indemnitee’s management of such other claims and (C) in any other case, to be consulted by such Indemnitee and in which case such Indemnitee agrees to cooperate with reasonable requests of Borrower, each such request at Borrower’s cost and expense, with respect to judicial proceedings subject to the control of such Indemnitee and to be allowed, at Borrower’s cost and expense, to participate therein. The Indemnitee may participate at its own cost and expense and with its own counsel in any judicial proceeding controlled by Borrower pursuant to the preceding provisions; provided that such Indemnitee’s participation does not, in Borrower’s reasonable judgment, prejudice or impair in any material respect the defense and management of such case. Borrower shall not apply be entitled to control the defense of any such Lender or the Agentaction, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22suit, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so or to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case compromise any such litigation or proceeding shall be brought against any Indemnified Person Expense (and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers relevant Indemnitee shall be entitled to participate in assume such litigation control), while (a) any Event of Default exists, (b) if such proceedings will involve a material risk of the sale, forfeiture, or proceeding andloss of, after written notice from Borrowers or the creation of any Lien (other than Permitted Lien) on the Collateral, unless Borrower shall have posted a bond or other security or collateral reasonably satisfactory to such Indemnified PersonIndemnitee in respect to such risk or (c) if such proceedings are likely to entail any risk of criminal liability or material risk of civil liability being imposed on such Indemnitee that, to assume in the defense case of civil liability in the reasonable opinion of such litigation Indemnitee, adversely affects in any material respect the business reputation of such Indemnitee or proceeding if, in the reasonable opinion of such Indemnitee, control by Borrower would be inappropriate due to a conflict of interest.
(3) In no event shall any Indemnitee enter into a settlement or other compromise with counsel of respect to any Expense without Borrower’s prior written consent (which shall not be unreasonably withheld or delayed), unless such Indemnitee waives its choice right to be indemnified with respect to such Expense under this Section 10(a) or is required by Law to do so.
(4) To the extent that any Expense indemnified by Borrower hereunder may be covered by insurance maintained by Borrower, at its Borrower’s expense, provided that such counsel is satisfactory each Indemnitee agrees to the Indemnified Person cooperate with all reasonable requests of insurers in the exercise of its reasonable judgment. Notwithstanding their rights to investigate, defend, or compromise such Expense as may be required to retain the election benefits of Borrowers such insurance with respect to such Expense.
(5) If an Indemnitee is not a party to this Agreement, Borrower may require such Indemnitee to agree in writing to the terms of this Section 10(a) and Section 12 before making any payment to such Indemnitee under this Section 10.
(6) Nothing in this Section 10(a)(v) shall require an Indemnitee to assume responsibility for or control of any judicial proceeding with respect thereto.
(vi) Borrower will promptly provide the defense relevant Indemnitee with such information not within the control of such litigation Indemnitee (but in Borrower’s control or proceedingreasonably available to Borrower) which such Indemnitee reasonably requests, and will otherwise cooperate with such Indemnified Person Indemnitee so as to enable such Indemnitee to fulfill its obligations under Section 10(a)(v). The Indemnitee shall have promptly supply Borrower with such information not within the right control of Borrower (but in such Indemnitee’s control or reasonably available to employ separate counsel such Indemnitee) which Borrower reasonably requests to control or participate in any proceeding to the extent permitted by Section 10(a)(v).
(vii) Upon payment in full by or on behalf of Borrower of any indemnity provided for under this Agreement, Borrower, without any further action and to participate in the defense full extent permitted by Law, will be subrogated to all rights and remedies of the Person indemnified (other than with respect to any of such litigation Indemnitee’s insurance policies or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses in connection with any indemnity claim of such separate counsel if Indemnitee under Section 11(d)) in respect of the matter as to which such indemnity was paid. Each Indemnitee will give such further assurances or agreements and cooperate with Borrower to permit Borrower to pursue such claims, to the extent reasonably requested by Borrower and at Borrower’s expense.
(iviii) If an Indemnitee receives any refund from any party other than Borrower or its insurers, in whole or in part, with respect to any Expense paid by Borrower hereunder, that Indemnitee will promptly pay such amount refunded (but not an amount in excess of the use amount Borrower or any of counsel chosen by Borrowers its insurers has paid in respect of such Expense) over to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from unless a Default or additional to those available to any Borrower (Event of Default exists, in which case Borrowers such amount shall not have be paid over to Security Agent to hold as security for Borrower’s obligations under the right relevant Operative Agreements until such time as such Default or Event of Default no longer exists, in which case such amount and any gain realized as a result of investments required to direct the defense of such action on behalf be made pursuant to Article 6 of the Indemnified Person); Security Agreement (iii) Borrowers shall not have employed counsel satisfactory except to such Indemnified Person the extent theretofore applied as provided in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (ivSecurity Agreement) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition paid over to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforBorrower.
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject to and limited in all respects by the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 11.6 through 11.8 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to the Property or any portion thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of the Property or any portion thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof or the removal or demolition of any existing improvements or encroachments thereon; (b) any latent or other defects in the Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Construction Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct Property or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableany portion thereof. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding) for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without 51 56 the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the 52 57 contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) an Environmental Violation, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; and (f) personal injury, officerdeath or property damage, employee, Affiliate including without limitation Claims based on strict or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableabsolute liability in tort. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be -------- ------- required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if shorter period. If, within thirty (i30) days of receipt of such notice from the use of counsel chosen Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by Borrowers law or regulation for the Indemnified Person to represent respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person would present respond to such counsel with a conflict of interest; (ii) Claim, the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of control such action (including without limitation by pursuit of appeals) (provided, however, -------- ------- that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person); (iii) Borrowers , at the Indemnity Provider's request, shall not have employed counsel satisfactory allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person in may request the exercise of Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person's reasonable judgment , such consent not to represent such be unreasonably withheld; provided, however, that any -------- ------- Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, -------- that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim, together with all reasonable costs and expenses incurred by the Indemnity Provider in connection therewith. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $10,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have demonstrated to the reasonable satisfaction of the Indemnified Person that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement Whether or of any other Loan Document, Borrowers not the transactions contemplated hereby jointly and severally indemnify each Lendershall be consummated, the Agent Borrower agrees to indemnify, pay and their respective directorshold the Agent, the Issuing Bank and each Bank, and the shareholders, officers, employeesdirectors, Affiliates employees and agents of the Agent, the Issuing Bank and each Bank (collectivelyeach, an "Indemnified PersonsPerson") against), harmless from and agree to hold each such Indemnified Person harmless from, against any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrowerlosses, damages, costs and related expenses, including reasonable counsel attorneys' fees and expensescosts (including the reasonable estimate of the allocated cost of in-house legal counsel and legal staff) and including costs of investigation, document production, attendance at deposition or other discovery, that may be incurred by such or asserted against any Indemnified Person Person, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any claiminvestigation, litigation, investigation litigation or proceeding (arising out of, related to or in connection contemplated by this Agreement or any contemplated use of the proceeds of the Loans, or the issuance of any Letter of Credit, whether or not such an Indemnified Person is a party thereto) relating to any transactionsthereto (collectively, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including"Indemnified Liabilities"), without limitation, relating except to the properties extent that such Indemnified Liabilities result from the gross negligence or business willful misconduct of the Agent, the Issuing Bank or any BorrowerBank. If any claim is made, or any default by a Borrower in the performance or observance of any representationaction, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation suit or proceeding is brought brought, against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22Section, such the Indemnified Person shall promptly notify Borrowers in writing the Borrower of such claim or of the commencement of such litigation action, suit or proceeding, but and the omission so to notify Borrowers Borrower shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Personthe option to, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure and at the request of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22shall, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person direct and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume control the defense of such litigation action, suit or proceeding with proceeding, employing counsel of its choice at its expense, provided that such counsel is selected by the Borrower and reasonably satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceedingPerson, and Borrowers shall bear pay the reasonable fees, costs fees and expenses of such separate counsel if (i) counsel. To the use of counsel chosen by Borrowers extent that the undertaking to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants inindemnify, or targets of, any such litigation or proceeding include both an Indemnified Person pay and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers hold harmless set forth in this Section 2.22 3.07 may be unenforceable because it is violative of any law or public policy, the Borrower shall be in addition contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Liabilities incurred by any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforIndemnified Person.
Appears in 1 contract
General Indemnity. Without limiting In the event that any other provision claim is made or any suit filed against Owner, or any affiliate of this Agreement Owner, or any member, officer, director or employee of any other Loan Document, Borrowers hereby jointly and severally indemnify each LenderOwner or an affiliate of Owner (including Owner, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "“Owner Indemnified Persons") against”), which claim or suit relates to the possession, maintenance, condition, storage, use, or operation of the Aircraft and agree is based upon a transaction, incident or occurrence which transpires during the Term hereof and is attributable to a breach by Provider of its obligations hereunder or to the gross negligence or willful misconduct of Provider, then, to the extent not covered by the insurance required to be maintained hereunder, Provider shall indemnify and hold each such harmless the Owner Indemnified Person harmless from, Persons against any and all claimscosts, damages and liabilities, including claims brought by any shareholder expenses or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person judgments arising out of any claim, litigation, investigation such claim or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby suit (including, without limitation, relating reasonable attorneys’ fees and expenses). Notwithstanding any provision of this Agreement to the properties contrary, in no event shall Provider be liable to Owner Indemnified Persons for an amount in excess of the total fees paid to Provider under this Agreement. In the event that any claim is made or business of any Borrowersuit filed against Provider, or any default by a Borrower in the performance or observance affiliate of any representationProvider, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a directormember, officer, employeedirector or employee of Provider or an affiliate of Provider (including Provider, Affiliate the “Provider Indemnified Persons”), which claim or agent suit relates to the possession, maintenance, condition, storage, use, or operation of the Aircraft and is based upon a Lender transaction, incident or occurrence which transpires during the AgentTerm, then, to the extent of such gross negligencenot covered by the insurance required to be maintained hereunder (and/or any other insurance carried by Provider), willful misconduct or subjective bad faith, such indemnity Owner shall not apply to such Lender or indemnify and hold harmless the Agent, as applicable. If any litigation or proceeding is brought Provider Indemnified Persons against any Indemnified Person in respect and all costs, expenses or judgments arising out of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements suit (including, without limitation, reasonable attorneys’ fees and expenses), unless such transaction, incident or occurrence is attributable to a breach by Provider of Borrowers in this Section 2.22 shall its obligations hereunder or to the gross negligence or willful misconduct of Provider, or, if for any reason any of the insurance required to be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforobtained and/or maintained by Provider hereunder is not so obtained and/or maintained, such claim or suit would have been covered by such insurance had it been maintained.
Appears in 1 contract
Samples: Aircraft Administrative and Flight Services Agreement (Hyatt Hotels Corp)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to assume the defense any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (ia) the use of counsel chosen financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.summary proceedings or
Appears in 1 contract
Samples: Participation Agreement (Guilford Pharmaceuticals Inc)
General Indemnity. Without limiting The Lessee, whether or not any other provision of this Agreement the transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person (whether because of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each action or omission of such Indemnified Person harmless fromor otherwise, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) shall also be indemnified as to any such Claim by any other Person and whether or not such Claim arises or accrues prior to the Closing Date or after the Expiration Date, in any way relating to or arising or alleged to arise out of (i) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, maintenance, modification, transportation, condition, operation, sale, return, repossession (whether by summary proceedings or otherwise), or any transactionsother disposition of the Property or any part thereof, services (ii) any latent or matters that are the subject other defects in any Property whether or arise in connection with or as a result of this Agreement not discoverable by an Indemnified Person or the transactions Lessee; (iii) a violation of any Legal Requirement or Requirement of Law; (iv) the Operative Agreements, or any transaction contemplated hereby thereby; (includingv) any breach by the Lessee of any of its representations or warranties under the Operative Agreements or failure by the Lessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (vi) personal injury, without limitation, death or property damage relating to the properties or business Property, including Claims based on strict liability in tort; (vii) the existence of any BorrowerLien on or with respect to the Property, the Improvements, the Equipment, any Basic Rent or Supplemental Rent, title thereto, or any default interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee, the Lessor or any of their contractors or agents or by reason of the financing of the Property or any personality or equipment purchased or leased by the Lessee or Improvements or Modifications constructed by the Lessee, except Lessor Liens and Liens in favor of the Agent or the Lessor; and (viii) the Transactions contemplated hereby or by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; but in any event excluding (A) Claims to the extent such Claims arise solely out of events occurring after the expiration of the Term and after the Lessee's discharge of all its obligations under the Lease and the other Operative Agreements, (B) as to any Indemnified Person, any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnified Person (as opposed to gross negligence or willful misconduct imputed to such Indemnified Person), (C) Claims arising from the acts or omissions of Lessor or any other occupant of the Property, or the agents, employees, contractors or invitees of either of them, occurring after Lessee's right to possession of the Property has been terminated and Lessee has surrendered possession of the Property, (D) any claim resulting from Lessor Liens, and (E) any Claim arising from a Borrower in the performance or observance of any representation, warranty, covenant or condition in breach by such Indemnified Person under this Agreement or any other Loan Document)Operative Agreements or any other agreement entered into in connection herewith or therewith. The Lessee shall be entitled to control, and shall assume full responsibility for the defense of, any Claim; provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent named in such Claim may retain separate counsel reasonably acceptable to the Lessee at the expense of a Lender or the Agent, then, Lessee in the event of and to the extent of a conflict. The Lessee and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such gross negligence, willful misconduct or subjective bad faith, such indemnity notice by an Indemnified Person shall not apply be a condition to the Lessee's obligations under this Section 12.1, except to the extent failure to give such Lender or the Agent, as applicablenotice materially prejudices Lessee's rights hereunder. If any litigation or proceeding is brought against any After an Indemnified Person in respect of which indemnity may be sought against Borrowers has been fully indemnified for a Claim pursuant to this Section 2.2212.1, and so long as no Lease Event of Default under the Lease shall have occurred and be continuing, the Lessee shall be subrogated to any right of such Indemnified Person shall promptly notify Borrowers in writing of the commencement of with respect to such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delayClaim. Failure None of the Indemnified Person to timely notify Borrowers Persons shall settle a Claim without the consent of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22Lessee, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers consent shall not be liable unreasonably withheld or delayed. Notwithstanding anything herein to the contrary, the indemnity provided by Lessee in favor of the Owner Trustee shall survive the termination of the Trust and the resignation and removal of the Owner Trustee but only to the extent reasonably required for the fees, costs and expenses full performance of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforindemnity.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers (a) The Borrower hereby jointly and severally agrees to indemnify on an After-Tax Basis each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to protect, save and hold harmless each such Indemnified Person harmless from, of them from any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesExpenses imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of or which would not have occurred but for (1) the Borrower Loan Documents and the consummation of the transactions contemplated thereby or any claimDefault or Event of Default thereunder and the enforcement of any of the terms thereof; (2) the Aircraft (or any item or other portion thereof) or any engine installed on the Airframe or any airframe on which an Engine is installed, litigation, investigation or proceeding (whether or not such Indemnified Person is a party theretoarising out of the manufacture, design, ordering, acceptance, rejection, acquisition, installation, purchase, registration, re-registration, refinancing, financing, ownership, delivery, nondelivery, lease, sublease, possession, use or non-use, operation, storage, maintenance, modification, alteration, condition, replacement, repair, loss, damage, destruction, removal, substitution, sale, return, surrender or other disposition of the Aircraft (or any item or other portion thereof) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, latent or other defects, whether or not discoverable, strict products liability, strict tort liability and any claim for patent, trademark or copyright infringement, environmental liability or any violation of an Applicable Law relating to the properties Aircraft; PROVIDED that the foregoing indemnity of an Indemnitee shall only apply for claims relating to Lender in its capacity as lender under the Borrower Loan Documents and not to Lender in its capacity, if any, as manufacturer, repairer, supplier or business of any Borroweraircraft servicing agent, or any default Expense to the extent resulting from or arising out of or which would not have occurred but for one or more of the following: (A) any express representation or warranty by a Borrower such Indemnitee in the performance Borrower Loan Documents being incorrect; or observance of (B) the failure by such Indemnitee to perform or observe any representation, warrantyexpress agreement, covenant or condition in any of the Borrower Loan Documents except to the extent such failure by such Indemnitee proximately results from any failure by the Borrower to observe any covenant, agreement or condition applicable to the Borrower in any Borrower Loan Document; or (C) the willful misconduct or the gross negligence of or violation of law by such Indemnitee (other than any of the foregoing imputed to such Indemnitee solely by reason of its interest in the Aircraft or being party to the Borrower Loan Documents); or (D) a disposition (voluntary or involuntary) of all or any part of its interest in any Note (other than as contemplated by the Security Agreement) or in any of the Borrower Loan Documents other than, in each case, during the continuance of a Specified Default or an Event of Default under this Loan Agreement or (E) any other Loan Document); providedTax, howeveror any loss of Tax benefits or increase in Tax liability under any Tax law, PROVIDED, HOWEVER, that such indemnity this CLAUSE (E) shall not apply to any obligation of the Borrower under Section 2.b or to Taxes arising from making any payment pursuant to this SECTION 9.12 on an After-Tax Basis; or (F) the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Borrower Loan Documents which amendments, supplements, waivers or consents (x) are not or were not requested by the Borrower, (y) are not occasioned by a specific requirement of the Borrower Loan Documents and (z) are not entered into pursuant to a Default or an Event of Default; or (H) except to the extent resulting from a breach of the Borrower representations contained in SECTION 3.2, the offer, sale or delivery by such lossesIndemnitee in violation of the Securities Act or a violation by such Indemnitee of any other applicable law or regulation relating to the transfer of any Note, or (I) except to the extent caused by acts or events occurring prior thereto, acts or events which occur after the earlier of: (x) the payment by the Borrower of all amounts required to be paid under the Borrower Loan Documents following a Total Loss and termination of the Loan; or (y) termination of the Loan and payment by the Borrower of all amounts required to be paid by Borrower pursuant to the terms of the Borrower Loan Documents; or (J) attributable to a Lender Lien.
(b) If a claim is made against an Indemnitee involving one or more Expenses and such Indemnitee has notice thereof, such Indemnitee shall promptly after receiving such notice give notice of such claim to the Borrower; provided, that the failure to provide such notice shall not diminish any of the Borrower's obligations to indemnify hereunder except to the extent the Borrower's right to contest the imposition of such Expense shall be prejudiced or to the extent such failure otherwise adversely affects the Borrower. The Borrower shall be entitled, at its cost and expense (and acting through counsel reasonably acceptable to the respective Indemnitee) (1) in any judicial or administrative proceeding that involves solely a claim for one or more Expenses, to assume responsibility for and control thereof, (2) in any judicial or administrative proceeding involving a claim for one or more Expenses and other claims related or unrelated to the transactions contemplated by the Borrower Loan Documents, to assume responsibility for and control of such claim for Expenses to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its best efforts to obtain such severance), and (3) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee and to be allowed, at the Borrower's sole expense, to participate therein. Notwithstanding any of the foregoing to the contrary, the Borrower shall not be entitled to assume responsibility for and control of any such judicial or administrative proceedings if (A) any Specified Default or Event of Default shall have occurred and be continuing, (B) such proceedings will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Lien permitted under the Borrower Loan Documents) on, the Aircraft or any material part thereof unless in such an event the Borrower shall have posted a bond or other security reasonably satisfactory to the relevant Indemnitees in respect to such risk or (C) such proceedings are reasonably likely to involve the imposition of criminal liability, or material civil penalty for which such Indemnitee is not indemnified hereunder, on an Indemnitee; PROVIDED, HOWEVER, no such proceeding shall be compromised or settled on a basis that admits gross negligence or misconduct on the part of such Indemnitee without such Indemnitee's prior written consent. The Indemnitee may participate at its own expense and with its own counsel in any judicial proceeding controlled by the Borrower pursuant to the preceding provisions so long as such participation shall not materially interfere with the Borrower's conduct or the defense of any such proceeding.
(c) The Indemnitee shall cooperate in good faith with the Borrower and, at the Borrower's expense, shall supply the Borrower with such information reasonably requested by the Borrower as is necessary or advisable for the Borrower to control or participate in any proceeding to the extent permitted by this SECTION 9.12. Such Indemnitee shall not (unless such Indemnitee waives its right to be indemnified with respect to such Expense under this SECTION 9.12) enter into a settlement or other compromise with respect to any Expense without the prior written consent of the Borrower (except during the continuance of an Event of Default when such consent shall not be required if the Indemnitee has given the Borrower at least 15 days prior written notice of the nature and scope of the proposed settlement or compromise), which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Borrower shall supply the Indemnitee with such information (which may, in the case of confidential or proprietary information be supplied subject to a reasonable confidentiality requirement) reasonably requested by the Indemnitee as is necessary or advisable for the Indemnitee to control or participate in any proceeding to the extent permitted by this SECTION 9.12.
(e) So long as no Specified Default or Event of Default under this Loan Agreement shall have occurred and be continuing, upon payment of any Expense pursuant to this SECTION 9.12, the Borrower, without any further action, shall be subrogated to, and may pursue, any claims the Indemnitee may have relating thereto other than claims against any Brazilian government entity. Each Indemnitee hereby agrees to give, at the Borrower's expense, such further assurances or agreements and to cooperate with the Borrower to permit the Borrower to pursue such claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, thenany, to the extent reasonably requested by the Borrower.
(f) The Borrower's obligations under the indemnities provided for in this Agreement shall be those of such gross negligencea primary obligor, willful misconduct whether or subjective bad faithnot the Person indemnified shall also be indemnified with respect to the same matter under the terms of any other document or instrument, such and the Person seeking indemnification from the Borrower pursuant to any provision of this Agreement may proceed directly against the Borrower without first seeking to enforce any other right of indemnification.
(g) To the extent permitted by applicable law, interest at the Debt Rate plus the Default Rate shall be paid, on demand, on any amount or indemnity not paid when due pursuant to this SECTION 9.12 until the same shall not apply to such Lender or be paid. Such interest shall be paid in the Agent, same manner as applicable. If any litigation or proceeding is brought against any Indemnified Person the unpaid amount in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel interest is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefordue.
Appears in 1 contract
Samples: Interim Loan Agreement (Republic Airways Holdings Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentIn addition to the Company’s agreement to reimburse CIT for Out-of-Pocket Expenses, Borrowers hereby jointly and severally indemnify each Lenderbut without duplication, the Agent Company hereby agrees to indemnify CIT and their respective its officers, directors, officers, employees, Affiliates attorneys and agents (collectivelyeach, "an “Indemnified Persons"Party”) againstfrom, and agree to defend and hold each such Indemnified Person Party harmless fromagainst, any and all losses, liabilities, obligations, claims, damages and liabilitiesactions, judgments, suits, damages, penalties, costs, fees, expenses (including claims brought by any shareholder or former shareholder reasonable attorney’s fees) of any Borrower, and related expenses, including reasonable counsel fees and expenseskind or nature which at any time may be imposed on, incurred by such by, or asserted against, any Indemnified Person arising out of any claim, litigation, investigation or proceeding Party:
(whether or not such Indemnified Person is a party theretoa) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement CIT’s exercise of (or the transactions contemplated hereby (failure to exercise) any of CIT’s rights and remedies hereunder, including, without limitation, (i) any sale or transfer of the Collateral, (ii) the preservation, repair, maintenance, preparation for sale or securing of any Collateral, and (iii) the defense of CIT’s interests in the Collateral (including the defense of claims brought by the Company, as a debtor-in-possession or otherwise, any secured or unsecured creditors of the Company, or any trustee or receiver in bankruptcy);
(b) as a result of any environmental pollution, hazardous material or environmental clean-up relating to the properties Real Estate, the Company’s operation and use of the Real Estate, and the Company’s off-site disposal practices;
(c) arising from or business relating to (i) the maintenance and operation of any BorrowerDepository Account, (ii) any Depository Account Control Agreements and (iii) any action taken (or failure to act) by any Indemnified Party with respect thereto;
(d) in connection with any regulatory investigation or proceeding by any regulatory authority or agency having jurisdiction over the Company; and
(e) otherwise relating to or arising out of the transactions contemplated by this Financing Agreement and the other Loan Documents, or any default action taken (or failure to act) by a Borrower any Indemnified Party with respect thereto; provided that an Indemnified Party’s conduct in connection with the performance any of the foregoing matters does not constitute gross negligence or observance of any representationwillful misconduct, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as finally determined by a court of competent jurisdiction to have arisen from jurisdiction. This indemnification shall survive the gross negligence, willful misconduct or subjective bad faith termination of such Indemnified Person, this Financing Agreement and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing payment and satisfaction of the commencement of such litigation or proceeding, but the omission so Obligations. CIT may from time to notify Borrowers shall not relieve Borrowers from any other obligation or liability time establish Availability Reserves with respect to claims asserted which it are covered by this indemnity as CIT may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person deem advisable in the exercise of its reasonable business judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable feesupon termination of this Financing Agreement, costs and expenses of CIT may hold such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it reserves as cash reserves as security for claims asserted which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving covered by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforindemnity.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers Lessee hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, disbursements (including reasonable counsel legal fees and expensesexpenses and Transaction Expenses to the extent not required to be paid by the Owner Trustee or the Owner Participant pursuant to Section 16 hereof but excluding internal costs and expenses such as salaries and overhead), of whatsoever kind and nature (collectively called "EXPENSES") imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any sublease or sub-sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Liquidity Provider, the Intercreditor Agreement and the Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement, (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the meaning of Section 15 of the Securities Act of 1933, as amended) or (E) the offer or sale of any interest in the Trust Estate or the Trust Agreement or any similar interest with respect to the properties Aircraft on or business prior to the Delivery Date; PROVIDED that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement or the Pass Through Trust Agreements or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this any of the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement or the Pass Through Trust Agreements applicable to it including, without limitation, the creation or existence of a Lessor Lien (including for this purpose Liens which would be Lessor Liens but for the proviso in the definition of Lessor Liens), a Loan Participant Lien or an Indenture Trustee's Lien (except to the extent such failure was caused directly by the failure of Lessee to perform any other Loan obligation under a Lessee Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate Indemnitee (or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing member of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if Related Indemnitee Group) (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.other
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
General Indemnity. Without limiting The Borrower shall indemnify the Administrative Agent (and any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly sub- agent thereof) and severally indemnify each Lender, each Swap Lender, each Cash Management Lender, each Creditcard Lender and each Related Party of any of the Agent and their respective directors, officers, employees, Affiliates and agents foregoing Persons (collectively, each such Person being called an "Indemnified PersonsIndemnitee") against, and agree to hold each such Indemnified Person Indemnitee harmless from, any and all losses, claims, damages damages, liabilities and liabilitiesrelated expenses (including the fees, including claims brought by any shareholder or former shareholder charges and disbursements of any Borrower, and related expenses, including reasonable counsel fees and expensesfor any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) other than such Indemnified Person Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Accommodation or the use or proposed use of the proceeds therefrom, or (iii) any actual or prospective claim, litigation, investigation or proceeding (relating to any of the foregoing, whether based on contract, tort or not such Indemnified Person any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, provided that such indemnity shall not apply not, as to any Indemnitee, be available to the extent that such losses, claims, damages, or liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have arisen resulted from the gross negligence, willful negligence or wilful misconduct of such Indemnitee or subjective (у) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate Indemnitee's obligations hereunder or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from under any other obligation Loan Document, if the Borrower or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it such Loan Party has obtained a final and nonappealable judgment in its favor on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements as determined by a court of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforcompetent jurisdiction.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentIn addition to the Company’s agreement to reimburse CIT for Out-of-Pocket Expenses, Borrowers hereby jointly and severally indemnify each Lenderbut without duplication, the Agent Company hereby agrees to indemnify CIT and their respective its officers, directors, officers, employees, Affiliates attorneys and agents (collectivelyeach, "an “Indemnified Persons"Party”) againstfrom, and agree to defend and hold each such Indemnified Person Party harmless fromagainst, any and all losses, liabilities, obligations, claims, damages and liabilitiesactions, judgments, suits, damages, penalties, costs, fees, expenses (including claims brought by any shareholder or former shareholder reasonable attorney’s fees) of any Borrower, and related expenses, including reasonable counsel fees and expenseskind or nature which at any time may be imposed on, incurred by such by, or asserted against, any Indemnified Person arising out of any claim, litigation, investigation or proceeding Party:
(whether or not such Indemnified Person is a party theretoa) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement CIT’s exercise of (or the transactions contemplated hereby (failure to exercise) any of CIT’s rights and remedies hereunder, including, without limitation, (i) any sale or transfer of the Collateral, (ii) the preservation, repair, maintenance, preparation for sale or securing of any Collateral, and (iii) the defense of CIT’s interests in the Collateral (including the defense of claims brought by the Company, as a debtor-in-possession or otherwise, any secured or unsecured creditors of the Company, or any trustee or receiver in bankruptcy);
(b) as a result of any environmental pollution, hazardous material or environmental clean-up relating to the properties Real Estate, the Company’s operation and use of the Real Estate, and the Company’s off-site disposal practices;
(c) arising from or business relating to (i) the maintenance and operation of any BorrowerDepository Account, (ii) any Depository Account Control Agreements and (iii) any action taken (or failure to act) by any Indemnified Party with respect thereto;
(d) in connection with any regulatory investigation or proceeding by any regulatory authority or agency having jurisdiction over the Company; and
(e) otherwise relating to or arising out of the transactions contemplated by this Financing Agreement and the other Loan Documents, or any default action taken (or failure to act) by a Borrower any Indemnified Party with respect thereto; provided that an Indemnified Party’s conduct in connection with the performance any of the foregoing matters does not constitute gross negligence or observance of any representationwillful misconduct, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as finally determined by a court of competent jurisdiction jurisdiction. This indemnification shall survive the termination of this Financing Agreement and the payment and satisfaction of the Obligations. CIT may from time to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in time establish Availability Reserves with respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it indemnity as CIT may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person deem advisable in the exercise of its reasonable business judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable feesupon termination of this Financing Agreement, costs and expenses of CIT may hold such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable reserves as cash reserves as security for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforindemnity.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers The Owner hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilitiesdisbursements, including claims brought by any shareholder or former shareholder of any Borrower, whatsoever kind and related expenses, including reasonable counsel fees and expensesnature (collectively called "Expenses") imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any lease or sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Liquidity Provider, the Intercreditor Agreement and the Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement or (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the properties meaning of Section 15 of the Securities Act of 1933, as amended); provided that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or business arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities or the Pass Through Trust Agreements or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this Agreement any of the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities or the Pass Through Trust Agreements applicable to it including, without limitation, the creation or existence of a Loan Participant Lien or an Indenture Trustee's Lien (except to the extent such failure was caused directly by the failure of the Owner to perform any other Loan obligation under an Owner Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified PersonIndemnitee (or any member of the Related Indemnitee Group) (other than gross negligence imputed to such Indemnitee (or any member of the Related Indemnitee Group) solely by reason of its interest in the Aircraft), and if or (D) with respect to any Indemnitee, a disposition (voluntary or involuntary) by such Indemnified Person Indemnitee of all or any part of such Indemnitee's interest in the Airframe, any Engine or in the Operative Documents other than during the continuance of an Event of Default under the Trust Indenture, or (E) any Tax whether or not the Owner is required to indemnify for such Tax pursuant to Section 7(b) hereof (it being understood that Section 7(b) hereof provides for the Owner's liability with respect to Taxes), or (F) in the case of an Indemnitee which is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.Loan
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Holdings Corp/Pred)
General Indemnity. Without limiting Whether or not the transactions contemplated hereby are consummated, the Borrower shall pay, indemnify, and hold the Lender and its respective officers, directors, employees, counsel, agents and attorneys-in-fact and Affiliates (each, an “Indemnified Person”) harmless from and against any other provision and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, charges, expenses or disbursements of any kind or nature whatsoever (including fees and disbursements of counsel) which may at any time (including at any time following repayment of any Loan) be imposed on, incurred by or asserted against any such Indemnified Person in any way relating to or arising directly or indirectly out of this Agreement or any other Credit Document, including any other document or instrument contemplated by or referred to herein or therein, or the transactions contemplated hereby and thereby, or any action taken or omitted by any such Person under or in connection with any of the foregoing, including with respect to the exercise by the Lender of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, of its rights or remedies under any of the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") againstCredit Documents, and agree to hold each such Indemnified Person harmless fromany investigation, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation litigation or proceeding (including any bankruptcy, insolvency, reorganization or other similar proceeding or appellate proceeding) related to this Agreement or any other Credit Document or any Loan, or the use of the proceeds thereof, whether or not such any Indemnified Person is a party thereto) relating to any transactions, services whether or matters that are not such investigation, litigation or proceeding is brought by the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, any of its shareholders or any default by a Borrower in the performance or observance of any representationcreditors, warranty, covenant or condition in this Agreement an Indemnified Person or any other Loan DocumentPerson, or an Indemnified Person is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Section 5 are satisfied or the other transactions contemplated by this Agreement are consummated (all the foregoing, collectively, the “Indemnified Liabilities”); provided, however, provided that such indemnity the Borrower shall not apply have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of such losses, claims, damages, or liabilities or related expenses Indemnified Person as determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, appeal. The Borrower agrees not to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If assert any litigation or proceeding is brought claim against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives on any rights theory of liability, for consequential, indirect, special or punitive damages incurred by it on account arising out of such delay. Failure or otherwise relating to this Agreement or any of the Indemnified Person to timely notify Borrowers other Credit Documents or any of the commencement of such litigation transactions contemplated hereby or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation thereby or proceeding. In case any such litigation the actual or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers proposed use of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf proceeds of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforLoan.
Appears in 1 contract
General Indemnity. Without limiting any other provision rights which ----------------- any such Person may have hereunder or under applicable law, AFS hereby agrees to indemnify each of this Agreement or the Agent, the Investors, the Collateral Agent, the Custodian (if other than AFS), the Backup Servicer, the Borrower, the Trust Trustee and each other Affected Person and each of their Affiliates, and each of their respective successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any other Loan Document, Borrowers hereby jointly and severally indemnify of the foregoing (each Lender, of the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, foregoing Persons being individually called an "Indemnified PersonsParty") against), forthwith on demand, from and agree to hold each such Indemnified Person harmless from, against any and all damages, ------------------ losses, claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, liabilities and related costs and expenses, including reasonable counsel attorneys' fees and expenses, disbursements (all of the foregoing being collectively called "Indemnified Amounts") awarded against or incurred by such Indemnified Person any of them arising ------------------- out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement Transaction Document or the transactions contemplated hereby thereby or the use of proceeds therefrom by the Borrower, including (including, without limitation, relating to ) in respect of the properties or business funding of any Borrower, Advance or any default by a Borrower in the performance or observance respect of any representationTransferred Receivable or Transferred ABS, warranty, covenant or condition in this Agreement or any other Loan Document); providedexcluding, however, that such indemnity shall not apply (a) Indemnified --------- ------- Amounts to any such losses, claims, damages, or liabilities or related expenses the extent determined by a court of competent jurisdiction to have arisen resulted from the gross negligence, negligence or willful misconduct or subjective bad faith on the part of such Indemnified PersonParty or its agent or subcontractor, (b) except as otherwise provided herein, non-payment by any obligor of an amount due and if such Indemnified Person is payable with respect to a directorTransferred Receivable or Transferred ABS, officer, employee, Affiliate (c) any loss in value of any Financed Vehicle or agent Permitted Investment due to changes in market conditions or for other reasons beyond the control of a Lender AFS or the AgentBorrower or (d) any tax upon or measured by net income on any Indemnified Party. Without limiting the foregoing, then, but subject to the extent exclusions (a) through (d) above, AFS agrees to indemnify each Indemnified Party for Indemnified Amounts arising out of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if relating to:
(i) the use breach of counsel chosen any representation or warranty made by Borrowers to represent such Indemnified Person would present such counsel the Borrower (or any of its officers) or AFS (in any capacity) or any Affiliate of AFS under or in connection with a conflict this Agreement or the other Transaction Documents, any Servicer's Certificate, Borrowing Base Confirmation or any other information, report or certificate delivered by the Borrower or Servicer or AFS (in any capacity) or an Affiliate of interest; AFS pursuant hereto or thereto, which shall have been false or incorrect in any material respect when made or deemed made;
(ii) the defendants infailure by the Borrower, AFC or AFS (in any capacity) to comply in any material way with any applicable law, rule or regulation with respect to any Transferred Receivable or any Financed Vehicle, or targets of, the nonconformity of any Transferred Receivable with any such litigation applicable law, rule or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); regulation;
(iii) Borrowers shall not have employed counsel satisfactory the failure to such Indemnified Person vest and maintain vested in the exercise Collateral Agent, for the benefit of the Indemnified Person's reasonable judgment to represent such Indemnified Person within Secured Parties, a reasonable time after notice first-priority security interest in all the Borrower Collateral, free and clear of the institution any Lien, other than a Lien arising solely as a result of such litigation an act of any Investor, or proceeding; or any assignee of any Investor;
(iv) Borrowers shall authorize any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Transferred Receivable (including, without limitation, a defense based on such Indemnified Person Transferred Receivable not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms) or Transferred ABS (including, without limitation, the lack of validity or enforceability of such Transferred ABS);
(v) any failure of AFS or an Affiliate of AFS, as Servicer, to employ separate counsel at perform its duties or obligations in accordance with the expense provisions of BorrowersArticle VIII or any provision contained in any Transaction Document; ------------
(vi) any claim involving products liability that arises out of or relates to merchandise or services that are the subject of any Transferred Receivable or strict liability claim in connection with any Financed Vehicle related to a Transferred Receivable;
(vii) any tax or governmental fee or charge (but not including taxes upon or measured by net income), provided that Borrowers shall not be liable for all interest and penalties thereon or with respect thereto, and all out-of-pocket costs and expenses, including the fees, costs reasonable fees and expenses of more than one separate counsel at in defending against the same time for all such Indemnified Persons in connection with same, which may arise by reason of the same action and making, maintenance or funding, directly or indirectly, of any separate but substantially similar Advance, or related action any other interest in the same jurisdiction. Borrowers shall not consent to Borrower Collateral;
(viii) the entry offering or sale of the Asset Backed Securities or the offering or effectuation of any judgment or enter into Take-Out Securitization; or
(ix) the commingling of the proceeds of the Borrower Collateral at any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefortime with other funds.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or 43 disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableabsolute liability in tort. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict)) by, provided that Borrowers shall in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not be liable for the fees, costs and expenses of more than one separate counsel at paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time for all such Indemnified Persons to time. The party controlling the response to any Claim shall consult in connection good faith with the same action non-controlling party and any separate but substantially similar or related action shall keep the non-controlling party reasonably informed as 44 to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the same jurisdictiondiscretion of the controlling party. Borrowers shall not consent The parties agree that an Indemnified Person may at any time decline to take further action with respect to the entry of any judgment or enter into any settlement in any response to such litigation or proceeding unless Claim and may settle such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to Claim if such Indemnified Person of a release shall waive its rights to any indemnity from all liability the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to such claim the Indemnity Provider any amount previously paid or litigation. The agreements of Borrowers in advanced by the Indemnity Provider pursuant to this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days 11.1 by way of written demand thereforindemnification or advance for the payment of an amount regarding such Claim.
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject to the provisions of this Agreement or of any other Loan DocumentSections 11.6, Borrowers hereby jointly 11.7 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (11.8 whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (includingbut not to the extent such Claims arise from the (u) misrepresentation or breach of warranty by an Indemnifed Person regarding its representations and warranties under any of the Operative Agreements, (v) failure by an Indemnified Person to comply with applicable state or federal banking Laws or other Laws, (w) acts or omissions that occur after the Credit Loans, the Mortgage Loans, the Lessor Advance and all other amounts outstanding under or pursuant to the Operative Agreements have been paid in full and the Lessee has either purchased the Property in accordance with the terms of the Operative Agreements or relinquished its interest in the Property in accordance with the terms of the Operative Agreements, (x) gross negligence or willful misconduct of such Indemnified Person itself, as determined by a court of competent jurisdiction (as opposed to gross negligence or willful misconduct imputed to such Indemnified Person) or (y) breach of such Indemnified Person’s obligations under this Agreement, the Lease or any other Operative Agreement, except any breach by any Indemnified Person caused by any breach by any Credit Party of any obligation of any Credit Party pursuant to the Operative Agreements) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to the Property or any component thereof, including without limitationlimitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair, modification or any disposition of the Property or any part thereof; (b) any latent or other defects in the Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the properties Property, the Lease or business of any Borrowerthe Indemnity Provider (collectively, all such items referenced in this Section 11.1(c) may be referred to as the “Environmental Matters”); (d) the Operative Agreements, or any default transaction contemplated thereby; (e) any breach by a Borrower in the performance or observance Indemnity Provider of any representation, warranty, of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or condition agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, in this Agreement respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other Loan Documentsimilar entity for the Property. If a written Claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of such proceeding), for any Claim, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or regulation to be taken prior to the end of such period of thirty (30) days, such Indemnified Person shall endeavor to, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period (unless required by law or regulation prior to the end of such seven (7) day period); provided, further, that the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals); provided, however, that (A) if such Claim, in the Indemnity Provider’s reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim with counsel to be selected by the Indemnity Provider after the solicitation and consideration of any advice provided by such Indemnified Person. In any event, with regard to any Claim for which the response is to be conducted and controlled by the Indemnity Provider, any Indemnified Person may retain separate counsel at the expense of the Indemnity Provider in the event of a material conflict of interest between such Indemnified Person and the Indemnity Provider. Also, in the sole discretion of the Person conducting and controlling the response to any Claim, such response may include (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably recommended by competent counsel from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the reasonable discretion of the controlling party; and, provided, further, the parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to a Claim and may settle the Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider for costs of the settlement in excess of a Reasonable Settlement Amount that otherwise would be payable in respect of such Claim (or in respect of any future Claim, the pursuit of which is precluded by reason of such settlement of such Claim) and shall reimburse the Indemnity Provider any such excess costs previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for a payment regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not apply be required to take any action unless (A) the Indemnity Provider shall have agreed to pay and shall pay to such lossesIndemnified Person on demand and on an After Tax Basis all reasonable costs, claimslosses and expenses that such Indemnified Person actually incurs in connection with such Claim, damagesincluding without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to pay an indemnity under this Section 11.1) exceeds $250,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or liabilities any part thereof or related expenses determined interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is reasonably required to pay upon advice of counsel (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim, including any appeal thereof, that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have caused to be provided to such Indemnified Person advice, but not an opinion, of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, advice, but not an opinion, of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, pursuant to the extent contest provisions of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.2211.1, such unless there shall have been a Change in Law and the Indemnified Person shall promptly notify Borrowers in writing have received, at the Indemnity Provider’s expense, advice, but not an opinion, of independent counsel selected by the commencement Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such litigation Change in Law, it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or proceeding, but settle any Claim without the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure consent of the Indemnified Person to timely notify Borrowers of the commencement of extent any such litigation adjustment or proceeding settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person. In the event that the Indemnity Provider shall not relieve Borrowers of their obligations be required to make any payment under this Section 2.2211.1 to an Indemnified Person, except where the Indemnified Person agrees to take such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case reasonable action as is requested by the Indemnity Provider, in writing, any such litigation action to be at the risk and expense of the Indemnity Provider, to minimize the consequences of the After-Tax Basis method of the indemnity. Each Indemnified Person shall cooperate in good faith (provided, the Indemnity Provider shall bear all cost and expense incurred by each Indemnified Person in connection therewith) in connection with any actions, suits or proceeding proceedings in providing any information in the possession of such Indemnified Person which may be requested by counsel of the Indemnity Provider in connection with any matter for which the Indemnified Person seeks indemnification under the Operative Agreements. Upon payment in full of any Claim by the Indemnity Provider or any insurer under a policy of insurance, the Indemnity Provider, without any further action, shall be brought against any subrogated to the claim that the Indemnified Person may have relating thereto and such Indemnified Person shall notify Borrowers execute such instruments of assignments and conveyance, evidence of claims and payment and such other documents, instruments and agreements as may be reasonably necessary to preserve any such claims and otherwise cooperate with the Indemnity Provider as may be reasonably necessary or advisable to enable the Indemnity Provider or its insurer as the case may be vigorously to pursue the Claim; provided, notwithstanding the foregoing, (a) the Indemnity Provider shall bear all cost and expense incurred by each Indemnified Person in connection with any and all of the commencement matters described in this paragraph and (b) each and every instrument, evidence of such litigation claims and payments, document and agreement of any kind or proceeding, Borrowers type referenced in this paragraph shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such (i) prepared by the Indemnity Provider and (ii) modified as requested by the Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforcommercially reasonable judgment.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentOwner hereby agrees to indemnify, Borrowers hereby jointly and severally indemnify on an after-tax basis, each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, save and keep harmless and shall pay on demand each such Indemnified Person harmless fromof them from (whether or not the transactions contemplated herein or in any of the other Operative Documents or the Pass Through Trust Agreements are consummated), any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesExpenses imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) the Fundamental Documents, any claimPermitted Lease and each Pass Through Trust Agreement (and any amendments thereto), litigationor the enforcement of any of the terms of any thereof; or (B) the manufacture, investigation design, purchase, resale, acceptance or proceeding rejection of the Airframe or any Engine or Parts; or (C) the Aircraft (or any portion thereof) or any Engine whether or not such Indemnified Person installed on the Airframe or any airframe on which an Engine is a party theretoinstalled whether or not arising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, possession, use, non-use, operation, maintenance, modification, alteration, condition, sale, replacement, substitution, disposition, registration, reregistration or airworthiness of the Aircraft (or any portion thereof) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any damage to property or the properties environment, death or business injury to any person and any claim for patent, trademark or copyright infringement; or (D) the offer, sale, holding, transfer or delivery of the Equipment Notes or the Pass Through Certificates, whether before, on or after the applicable Issuance Date (the indemnity in this clause (D) to extend also to any Borrowerperson who controls an Indemnitee, its successors, assigns, employees, directors, officers, servants and agents within the meaning of Section 15 of the Securities Act of 1933, as amended); or (E) any breach of, or failure to perform or observe, or any default other noncompliance with, any covenant or agreement or other obligation to be performed by Owner under any Fundamental Document to which it is a Borrower party or the falsity of any representation or warranty of the Owner in any Fundamental Document; provided, with respect to an Indemnitee, that the foregoing indemnity shall not extend to any Expense to the extent resulting from or arising out of one or more of the following:
(1) any representation or warranty by such Indemnitee or any Related Indemnitee thereof in the performance Operative Documents or observance of in any representation, warrantyother Fundamental Document being incorrect; or
(2) the failure by such Indemnitee or any Related Indemnitee thereof to perform or observe any agreement, covenant or condition in this Agreement or any other Loan Document)of the Fundamental Documents; provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from or
(3) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate Indemnitee or agent of a Lender or the Agent, then, to the extent of such any Related Indemnitee thereof (other than gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply negligence imputed to such Lender Indemnitee or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred Related Indemnitee thereof solely by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel reason of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person interest in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified PersonAircraft); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.or
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentThe Lessee, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person in any way relating to or arising or alleged to arise out of (includinga) the financing, without limitationrefinancing, ground lease purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, maintenance, modification, transportation, condition, operation, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of the Property or any part thereof, (b) any latent or other defects in any property whether or not discoverable by an Indemnified Person or the Lessee; (c) a violation of any Legal Requirement or Requirement of Law, including any violation of Environmental Laws, the Release, presence or use of Hazardous Substances on, at, under or emanating from the Property or other loss of or damage relating to the properties or business of any BorrowerProperty; (d) the Operative Agreements, or any default transaction contemplated thereby; (e) any breach by a Borrower in the performance or observance Lessee of any representation, warranty, of its representations or warranties under the Operative Agreements or failure by the Lessee to perform or observe any covenant or condition agreement to be performed by it under any of the Operative Agreements; (f) personal injury, death or property damage relating to the Property, including Claims based on strict liability in this Agreement tort; (g) the existence of any Lien on or with respect to the Property, the Improvements, the Equipment, any Basic Rent or Supplemental Rent, title thereto, or any interest therein, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee, the Lessor, or any of their contractors or agents or by reason of the financing of the Property or any personally or equipment purchased or leased by the Lessee or Improvements or Modifications constructed by the Lessee, except Lessor Liens and Liens in favor of the Agent or the Lessor; and (h) the Transactions contemplated hereby or by any other Loan Document)Operative Agreement, in respect of the 26. 28 application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code; but in any event excluding (x) Claims to the extent such Claims arise solely out of events occurring after the expiration of the Term and after the Lessee's discharge of all its obligations under the Lease and the other Operative Agreements or (y) as to any Indemnified Person, any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnified Person. The Lessee shall be entitled to control, and shall assume full responsibility for the defense of, any Claim; provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent named in such Claim may retain separate counsel reasonably acceptable to the Lessee at the expense of a Lender or the Agent, then, Lessee in the event of and to the extent of an actual conflict. The Lessee and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such gross negligence, willful misconduct or subjective bad faith, such indemnity notice by an Indemnified Person shall not apply be a condition to the Lessee's obligations under this Section 11.1, except to the extent failure to give such Lender or notice materially prejudices the Agent, as applicableLessee's rights hereunder. If any litigation or proceeding is brought against any After an Indemnified Person in respect of which indemnity may be sought against Borrowers has been fully indemnified for a Claim pursuant to this Section 2.2211.1, and so long as no Event of Default shall have occurred and be continuing, the Lessee shall be subrogated to any right of such Indemnified Person shall promptly notify Borrowers in writing of the commencement of with respect to such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delayClaim. Failure None of the Indemnified Person to timely notify Borrowers Persons shall settle a Claim without the consent of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22Lessee, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers consent shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar unreasonably withheld or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefordelayed.
Appears in 1 contract
General Indemnity. Without limiting any other provision rights which any such Person may have hereunder or under Applicable Law, each Seller, jointly and severally, hereby agrees to indemnify and hold harmless Buyer Agent, each Buyer, their respective Affiliates and all of this Agreement or their respective successors, transferees, participants and assigns, and all officers, members, managers, directors, shareholders, employees and agents of any other Loan Documentof the foregoing (each an “Indemnified Person”), Borrowers hereby jointly forthwith on demand, from and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, against any and all damages, losses, claims, damages liabilities and liabilitiesrelated reasonable and documented out-of-pocket costs and expenses (including all filing fees, including claims brought Attorney Costs and Taxes (other than Excluded Taxes)) (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person them arising out of any claimof, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result the Transaction Agreements, any of this Agreement or the transactions contemplated hereby (includingthereby, without limitationthe ownership, relating to the properties maintenance or business purchasing of any BorrowerPurchased Note, or any default by a Borrower in the performance actions or observance inactions of Seller Agent, Guarantor, any Seller or any Affiliate of any representation, warranty, covenant or condition of them in this Agreement or connection with any other Loan Document)of the foregoing; provided, however, that notwithstanding anything to the contrary in this Article 9, no such indemnity Seller shall not apply be responsible for Indemnified Amounts solely to any the extent resulting from the gross negligence or willful misconduct on the part of such lossesIndemnified Person, claims, damages, or liabilities or related expenses as determined by a final non-appealable judgment by a court of competent jurisdiction jurisdiction, as determined by a final non-appealable judgment by a court of competent jurisdiction. Without limiting the foregoing, each Seller, jointly and severally, shall indemnify, subject to the express limitations set forth in this Section 9.1, and hold harmless each Indemnified Person for any and all Indemnified Amounts arising out of, relating to or in connection with:
(i) the transfer by any Seller of any interest in any Purchased Note or any proceeds thereof, other than in connection with Transactions entered into with Buyer Agent and the Buyers pursuant to the Transaction Agreements;
(ii) any representation, warranty or statement made or deemed made by or on behalf of any Seller (or any of its officers or Affiliates) under or in connection with any Transaction Agreement, any Information Package, Purchase Report or any other information or report delivered by or on behalf of any Seller pursuant hereto, which shall have been untrue, false or incorrect when made or deemed made;
(iii) the failure of any Seller, Seller Agent, Securitization Guarantor or the Securitization Servicer to comply with the terms of any Transaction Agreement, any Seller Note, any Securitization Documents or any Applicable Law, or the nonconformity of any Seller Note with any such Applicable Law;
(iv) the lack of an enforceable ownership interest or a first priority perfected security interest in any Purchased Note transferred by any Seller, or purported to be transferred by any Seller, to Buyer Agent, on behalf of Buyers, pursuant to the Transaction Agreements against all Persons (including any bankruptcy trustee or similar Person);
(v) any attempt by any Person to void the transfers by any Seller contemplated hereby under statutory provisions or common law or equitable action;
(vi) the failure to have arisen from filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the gross negligenceUCC of any applicable jurisdiction or other Applicable Laws with respect to any Purchased Note transferred by any Seller, willful misconduct or subjective bad faith purported to be transferred by any Seller, to Buyer Agent, on behalf of Buyers, pursuant to the Transaction Agreements, whether as of the applicable Purchase Date or at any time thereafter;
(vii) any dispute, claim, offset, defense, or other similar claim or defense of Cofina to the payment when due of any Purchased Note transferred, or purported to be transferred, by any Seller to Buyer Agent, on behalf of Buyers, pursuant to the Transaction Agreements (including a defense based on such Indemnified PersonPurchased Note not being a legal, valid and if such Indemnified Person is a director, officer, employee, Affiliate or agent binding obligation of a Lender Cofina enforceable against it in accordance with its terms);
(viii) any failure of any Seller or the Securitization Servicer to perform any of its duties or obligations arising under or in connection with any Purchased Note in accordance with the provisions thereof or of any of the other Securitization Facility Documents;
(ix) any suit or claim related to any Purchased Note transferred by any Seller, or purported to be transferred by any Seller, to Buyer Agent, thenon behalf of Buyers, pursuant to the extent of such gross negligenceTransaction Agreements;
(x) any investigation, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against (actual or threatened) related to this Framework Agreement or any other Transaction Agreement or the use of proceeds of any purchase hereunder or in respect of any Purchased Note;
(xi) any civil penalty or fine assessed by OFAC or any other Governmental Authority administering any Anti-Terrorism Law, Anti-Corruption Law or Sanctions, and all reasonable costs and expenses (including reasonable documented legal fees and disbursements) incurred in connection with defense thereof by, any Indemnified Person in respect connection with the Transaction Agreements as a result of which indemnity may be sought against Borrowers pursuant to this Section 2.22any action of Seller Agent, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation any Seller or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case respective Affiliates;
(xii) any such litigation or proceeding shall be brought against Taxes (other than Excluded Taxes) imposed upon any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceedingupon or with respect to any Purchased Note transferred by any Seller, Borrowers shall or purported to be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Persontransferred by any Seller, to assume the defense of such litigation or proceeding with counsel of its choice at its expenseBuyer Agent, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of Buyers, pursuant to the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise Transaction Agreements arising by reason of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution purchase or ownership of such litigation Purchased Note (or proceedingof any interest therein);
(xiii) any inability of any Seller to transfer any Purchased Note as contemplated under the Transaction Agreements; or
(xiv) the violation or (iv) Borrowers shall authorize such Indemnified Person breach by any Seller or Seller Agent of any confidentiality provision, or of any similar covenant of non-disclosure, with respect to employ separate counsel at the expense of Borrowers, provided that Borrowers any Purchased Note.
Section 9.1 shall not be liable construed as a guaranty by any Seller of Cofina’s payment, performance or other obligations under any Purchased Note; provided that, for the feesavoidance of doubt, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Sellers shall not consent remain liable to the entry Buyers, on a joint and several basis, for the payment of the Repurchase Price for any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof Transaction regardless of the giving performance by the claimant or plaintiff to such Indemnified Person Cofina of a release from all liability in its obligations with respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforPurchased Note.
Appears in 1 contract
Samples: Master Framework Agreement (CHS Inc)
General Indemnity. Without limiting Whether or not the transactions contemplated hereby are consummated, the Companies shall indemnify, defend and hold the Agent-Related Persons, and each Bank and each of its respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any other provision and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Agent or replacement of any Bank) be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilitiesforegoing, including claims brought by with respect to any shareholder investigation, litigation or former shareholder of proceeding (including any Borrower, and Insolvency Proceeding or appellate proceeding) related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person to or arising out of any claimthis Agreement or the Loans or the use of the proceeds thereof, litigation, investigation or proceeding (whether or not such any Indemnified Person is a party thereto) relating to any transactionsthereto (all the foregoing, services or matters that are collectively, the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document"Indemnified Liabilities"); provided, however, that such indemnity the Companies shall not apply have no obligation hereunder to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction Indemnified Person with respect to have arisen Indemnified Liabilities resulting solely from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days survive payment of written demand thereforall other Obligations.
Appears in 1 contract
General Indemnity. Without limiting (i) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify, defend and hold the Administrative Agent-Related Persons and each Lender and each of its respective officers, directors, trustees, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any other provision and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including reasonable Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans, the termination of the Letters of Credit and the termination, resignation or replacement of the Administrative Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement (other than costs incurred in connection with the initial review, execution and delivery hereof by the Lenders), or any document contemplated by or referred to herein or therein, or the transactions contemplated hereby or thereby, or any action taken or omitted by any such Person under or in connection with any of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilitiesforegoing, including claims brought by with respect to any shareholder investigation, litigation or former shareholder of proceeding (including any Borrower, and Insolvency Proceeding or appellate proceeding) related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person to or arising out of any claimthis Agreement, litigationor the Loans or Letters of Credit or the use of the proceeds thereof, investigation or proceeding (whether or not such any Indemnified Person is a party thereto) relating to any transactionsthereto (all the foregoing, services or matters that are collectively, the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document"Indemnified Liabilities"); provided, however, that such indemnity the Borrower shall not apply have no obligation hereunder to any such losses, claims, damages, or liabilities or related expenses Indemnified Person with respect to Indemnified Liabilities to the extent they are determined by a court of competent jurisdiction to have arisen result from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent .
(ii) At the election of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no the Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be using legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in such Person's sole discretion, at the exercise sole cost and expense of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise haveBorrower. All amounts due owing under this Section 2.22 shall be payable paid within ten 30 days after demand.
(10iii) days The agreements and obligations contained in this subsection 11.5(a) shall survive payment in full of written demand thereforthe Loans, the L/C Obligations and the termination of the Commitments and all Letters of Credit.
Appears in 1 contract
General Indemnity. Without limiting (a) The Obligors shall indemnify and keep indemnified each Indemnitee against all Losses which may at any time be incurred by that Indemnitee:
(i) relating to, or arising directly or indirectly in any manner whatsoever out of, the condition, testing, design, manufacture, purchase, importation to or exportation from any country, registration, possession, control, chartering, sub-chartering, use, operation, storage, maintenance, repair, service, modification, overhaul, replacement, insurance, removal, repossession, re-delivery, disposal or Total Loss of any Vessel;
(ii) on the grounds that any Vessel or any design, article or material in or forming part of any Vessel or the operation or use thereof constitutes or is alleged to constitute an infringement of any patent or other intellectual property right or any other provision of this Agreement right whatsoever;
(iii) in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of any other Loan DocumentVessel at any time, Borrowers hereby jointly and severally indemnify each Lender, or in securing the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder release of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out Vessel;
(iv) in retaking possession of any claim, litigation, investigation Vessel or proceeding (whether detaining any Vessel or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise other vessel in connection with or the enforcement of rights of that Indemnitee under the Finance Documents;
(v) as a result consequence of this Agreement a Vessel becoming a wreck or the transactions contemplated hereby obstruction to navigation (including, without limitation, relating to in respect of the properties removal or business destruction of any Borrower, the wreck or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, obstruction under statutory powers but only to the extent that the relevant Loss has not been recovered from the Vessel’s Insurers);
(vi) resulting from the Operator parting with possession of a Vessel at any time;
(vii) arising out of an Environmental Claim made or asserted against any Finance Party if such gross negligenceEnvironmental Claim would not have been made, willful misconduct or subjective bad faithbeen capable of being made or asserted against that Finance Party if it has not entered into any of the Finance Documents and/or exercised any of its rights, such powers and discretions thereby conferred and/or performed any of its obligations thereunder and/or been involved in the transactions contemplated by the Finance Documents; or
(viii) any claim, investigation, litigation or proceeding (or the preparation of any defence with respect thereto) commenced or threatened in relation to the Finance Documents (or the transactions contemplated thereby and, in the case of the Agent and the Security Agent, the exercise and performance of their obligations thereunder) or any use made or proposed to be made with the proceeds of the Facility. This indemnity shall apply whether or not apply to such Lender or the Agentclaims, as applicable. If any investigation, litigation or proceeding is brought against by any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22Obligor, such Indemnified Person shall promptly notify Borrowers in writing any of the commencement of such litigation Obligors’ shareholders or proceedingcreditors, but the omission so to notify Borrowers shall not relieve Borrowers from an Indemnified Party or any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants inperson, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within Party is otherwise a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforparty thereto.
Appears in 1 contract
Samples: Facility Agreement (Danaos Corp)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentSubject to Section 11.6, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableapplicable Property. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest- free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
Samples: Participation Agreement (Performance Food Group Co)
General Indemnity. Without limiting any Subject to the other provision provisions of this Agreement or of any other Loan DocumentSection 10.3, Borrowers hereby jointly Lessee agrees to pay, defend and severally indemnify each Lenderand hold Lessor, Trust Company, Lenders, the Administrative Agent, Collateral Agent and Certificate Holders and their respective directorsAffiliates, officers, employees, Affiliates successors and agents assigns (collectively, including any consolidated or combined group of which any such Person is a member) (each a "Indemnified PersonsTax Indemnitee") against, and agree to hold each such Indemnified Person harmless from, on an After-Tax Basis from any and all claimsFederal, damages state, local and liabilitiesforeign taxes, including claims brought fees, withholdings, levies, imposts, duties, assessments, penalties and charges of any kind and nature whatsoever, together with any penalties, fines or interest thereon (herein called "Taxes") howsoever imposed, whether levied or imposed upon or asserted against a Tax Indemnitee, Lessee, any Item of Equipment, or any part thereof, by any shareholder federal, state or former shareholder local government or taxing authority in the United States, or by any taxing authority of a foreign country or subdivision thereof, upon or with respect to (a) the Items of Equipment, any Item of Equipment or any part thereof, (b) the manufacture, construction, ordering, transfer, ownership, transfer of ownership, titling or re-titling, registration or re-registration, delivery, leasing, subleasing, possession, use, operation, maintenance, storage, removal, return, mortgaging, granting of any Borrowerinterest in, and related expensestransfers of title to, including reasonable counsel fees and expensesacquisition, incurred sale or other disposition of licensing, documentation, repossession, sale or other acquisition or disposition of the Items of Equipment, any Item of Equipment or any part thereof, (c) the revenues, rent, receipts or earnings arising from any Item of Equipment or any part thereof, (d) any Operative Document, (e) any Lease Payment, Availability Fee or Supplemental Payment or any payment made to a Lender by such Indemnified Person arising out Lessor, Lessee, Certificate Holders or Trust Company pursuant to the Operative Documents, or (f) otherwise in respect of the Operative Documents or any claim, litigation, investigation thereof or proceeding (whether any transaction or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforthereby.
Appears in 1 contract
Samples: Participation Agreement (Universal Compression Holdings Inc)
General Indemnity. Without limiting any other provision Subject to and limited by in all respects the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 11.6 through 11.8 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableapplicable Property. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure arises from the gross negligence or willful misconduct of such Indemnified Person and in such case, the Indemnity Provider shall be relieved of its indemnity obligation respecting such Claim to the extent, but only to the extent, the failure of such Indemnified Person to give such notice has materially precluded the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and the Indemnity Provider shall not be permitted to respond to any separate but substantially similar or related action Claim in the same jurisdiction. Borrowers name of the Indemnified Person unless (A) the Indemnity Provider shall not consent have agreed to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such Claim shall involve the payment of any amount indemnified hereunder prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (D) in the case of an appeal of a release from all liability Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that the position asserted in such appeal will more likely than not prevail and (E) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of independent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person. Each Indemnified Person shall use commercially reasonable efforts to supply the Indemnity Provider with such claim information and documents reasonably requested by the Indemnity Provider as are necessary for the Indemnity Provider to participate in any action, suit or litigationproceeding to the extent permitted by Section 11.1. The agreements of Borrowers Notwithstanding anything to the contrary in this Section 2.22 11.1, the following shall be in addition excluded from the obligations of the Indemnity Provider to indemnify, defend and hold harmless required by this Section 11.1:
(i) as to any Indemnified Person, Claims attributable to or which would not have arisen but for the breach of representations, warranties or covenants of such Indemnified Person in any Operative Agreement;
(ii) Claims arising as a result of any liabilities or obligations of an Indemnified Person which would not have arisen but for the transfer, conveyance or assignment by such Indemnified Person of any portion of its interest or the grant of a participation with respect thereto (except for any such transfer, conveyance, assignment or participation requested by any Credit Party or otherwise made to any Eligible Assignee);
(iii) Claims otherwise due to an Indemnified Person arising out of any matters expressly excluded from any provision of the Operative Agreements purporting to exculpate such Person from liability that Borrowers thereunder;
(iv) Claims for any loss as a result of the exercise by Lessee of the Sale Option or Construction Agent Options under circumstances where Lessee pays all sums required to be paid by it in connection therewith but such sums are less than the full Termination Value;
(v) Claims arising from any decline in the value of the Property or failure to repay the Notes or Certificates not resulting from any breach of any Operative Agreement by any Credit Party;
(vi) costs or expenses of satisfying, discharging or removing any Lessor Lien;
(vii) costs or expenses incurred by Lenders or Holders (other than the Agent) in connection with their negotiation or execution of the Operative Agreements or in connection with any due diligence they may otherwise have. All undertake before entering into the Operative Agreements;
(viii) Claims with respect to Taxes or Impositions (the Indemnity Provider's sole indemnification obligations with respect thereto being as set forth in Section 11.2);
(ix) Claims arising out of the handling of funds by Agent or Owner Trustee;
(x) without limiting Lessee's obligations to pay Basic Rent, Supplemental Rent, Termination Value, Maximum Residual Guarantee Amount or Maximum Amount to the extent required by the Operative Agreements, Claims for the repayment of any amount advanced by the Lenders or the Holders pursuant to the provisions of Sections 5.2, 5.3 or 5.4;
(xi) Claims arising as a result of a Credit Agreement Default or a Credit Agreement Event of Default unless attributable to a Default or an Event of Default by Lessee;
(xii) Claims arising as a result of acts or occurrences after the Expiration Date or Termination Date; and
(xiii) Claims arising from the failure of the Lessee to pay more than the Maximum Amount regarding any instance in which the Construction Agent has elected the second Construction Agent Option set forth in Section 2.1 (as opposed to the first Construction Agent Option to pay the Termination Value for the Properties plus other amounts due under and pursuant to which option the Construction Agent would then be entitled to receive all right, title and interest of the Lessor in and to the Properties); provided, the exclusion set forth in this Section 2.22 11.1(xiii) (A) shall be payable within ten only apply to Claims that the repayment of the Property Costs for the Properties (10as opposed to Claims for other matters) days of written demand thereforshould not have been limited to the Maximum Amount and (B) such exclusion shall not apply to any other Claims.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentSubject to the limitations set forth in Section 11.7 hereof, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person from and after the Commencement Date (including, without limitation, relating but not to the properties extent such Claims arise from (x) the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction or (y) a diminution in the Fair Market Sales Value of the Property unless such diminution is caused by or related to have arisen (i) any act or omission of the Indemnity Provider, any Person engaged by the Indemnity Provider, any Construction Agency Person or any Affiliate of any of the foregoing or (ii) any Default or Event of Default of the Lessee and/or the Construction Agent) and Claims for loss or damage, arising out of or as a result of the grant or denial of equitable relief in any way relating to or arising or alleged to arise out of the negotiation, execution, delivery, performance or enforcement of or compliance with this Agreement, the Lease or any other Operative Agreement or on or with respect to the Property or any component thereof, the Collateral or any component thereof, or the ownership of any Loan or Note or the making of any Lessor Advance, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, transfer of ownership, design, construction, refurbishment, development, delivery, non-delivery, redelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair, modification, transportation, condition, sale, return, manufacture, ordering, transfer, titling or re-titling, registration or re-registration, storage, removal, mortgaging, granting any interest in, acquisition, repossession (whether by summary proceedings or otherwise), transfer of title to or other application or disposition of the Property or any part thereof or in the Collateral or any portion thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, the Collateral, lease or agreement comprising a portion of any thereof; (b) any patent or latent or other defects in the Property or any portion thereof or in the Collateral or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider or any other Person; (c) a violation of, or penalties arising from any violation of, Environmental Laws, Environmental Claims or the release of any substance into the environment or other loss of or damage to any property or the environment, relating to the Property, the Collateral, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements or the failure of the Indemnity Provider, the Lease, the Property or the Collateral to comply with applicable Law; (f) the transactions contemplated hereby or by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, death, property damage or loss, including without limitation Claims based on strict or absolute liability in tort or negligence; (h) any Claim not referenced in subsection (g) based on strict liability in tort or negligence; (i) any claim for patent, trademark, trade name or copyright infringement; (j) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Property; (k) the failure of the Indemnity Provider to vest and maintain vested in the Agent (on behalf of the Secured Parties) or to transfer to the Agent (on behalf of the Secured Parties), a security interest in the Collateral, free and clear of any Lien whether existing at the time of any borrowing or at any time thereafter other than Permitted Liens and Lessor Liens; (l) any failure of the Indemnity Provider to perform its duties or obligations in accordance with the provisions of the Operative Agreements; (m) the failure by the Indemnity Provider to pay when due any Taxes for which the Indemnity Provider is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Lease; (n) any disgorgement or return of payment by the Agent, a Lender, the Lessor, an Affected Party or a Secured Party of any amount previously distributed hereunder in accordance with the Operative Agreements to such party; (o) any investigation, litigation or proceeding related to the Operative Agreements or the use of proceeds of Loans or Lessor Advances or the ownership of the Notes or the making of an Lessor Advance or in respect to the Lease; (p) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable Laws with respect to any Collateral, whether at the time of any Loan or Lessor Advance or at any subsequent time; (q) any dispute, claim, offset or defense of the Indemnity Provider to the payment with respect to any payment obligation of UTHR, in any of its capacities, pursuant to the Operative Agreements (including without limitation a defense based on any such payment obligation not being a legal, valid and binding obligation of UTHR enforceable against it in accordance with its terms), or any other claim resulting from the gross negligencesale of the merchandise or services related to such Loans, willful misconduct Lessor Advances, Notes or subjective bad faith the Operative Agreements or the furnishing or failure to furnish such merchandise or services; (r) any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which the Indemnity Provider may be located as a result of such Indemnified Personthe Indemnity Provider’s failure to qualify to do business or file any notice or business activity or similar report; (s) any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with the Collateral or services that are the subject of any Collateral; (t) the use of the proceeds of any Loan or Lessor Advance in a manner other than as provided in the Operative Agreements; or (u) the failure of the Indemnity Provider or any of its respective agents or representatives to remit to the Lenders, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender the Lessor or the Agent, thencollections, rents or payments remitted to the extent of such gross negligence, willful misconduct Indemnity Provider or subjective bad faith, such indemnity shall not apply to such Lender any agent or the Agent, as applicablerepresentative. If any litigation or proceeding a written demand is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding) for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period unless the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available required by such law or regulation to it which are different from or additional take action prior to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense end of such action on behalf seven (7) day period; provided, further, that the failure of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes the Indemnity Provider from contesting all or any part of such Claim, but only for the portion of the Claim that the Indemnity Provider is precluded from contesting. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the reasonable expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider’s reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request in writing that the Indemnity Provider conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld or delayed; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a potential conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall not be liable made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the feespayment of an amount regarding such Claim, costs and except reasonable expenses of more than one separate counsel at the same time for all therefrom incurred by such Indemnified Persons Person in connection with the same response to such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (D) in the case of an appeal of an adverse determination of a release from all liability Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person written advice, but not an opinion, of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that the position asserted in such appeal will more likely than not prevail) and (E) no Event of Default by the Indemnity Provider shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely to the position taken by the Indemnity Provider by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received, at the Indemnity Provider’s expense, an opinion of independent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforthe Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting any other provision Each of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lenderthe REIT, the Agent Borrowers and their respective directorsthe other Obligors agree to indemnify and hold harmless the Administrative Agent, officersthe Syndication Agent, employeesthe Documentation Agent, Affiliates the Arranger and agents (collectivelythe Lenders and each director, "Indemnified Persons") againstofficer, employee and agent of, and agree to hold each such Indemnified Person harmless fromwho controls, the Administrative Agent, the Syndication Agent, the Documentation Agent, the Arranger or any Lender from and against any and all claims, actions and suits whether groundless or otherwise, and from and against any and all liabilities, losses, damages and liabilities, including claims brought by any shareholder or former shareholder expenses of any Borrower, every nature and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person character arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or any of the other Loan Documents or the transactions contemplated hereby (and thereby including, without limitation, relating to (a) any actual or proposed use by the properties REIT, any Borrower or business any of their Subsidiaries of the proceeds of any Borrowerof the Loans, (b) any actual or alleged infringement of any patent, copyright, trademark, service xxxx or similar right of the REIT, any Borrower or any default by a of their Subsidiaries, (c) the REIT, any Borrower in the performance or observance any of any representation, warranty, covenant their Subsidiaries entering into or condition in performing this Agreement or any of the other Loan DocumentDocuments or (d) with respect to the REIT, the Borrowers and their Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the Release or threatened Release of any Hazardous Substances or any action, suit, proceeding or investigation brought or threatened with respect to any Hazardous Substances (including, but not limited to claims with respect to wrongful death, personal injury or damage to property), in each case including, without limitation, the reasonable fees and disbursements of counsel incurred in connection with any investigation, litigation or other proceeding; providedPROVIDED, howeverHOWEVER, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations be obligated under this Section 2.2216 to indemnify the Administrative Agent, except where the Syndication Agent, the Documentation Agent, the Arranger, any Lender or any other Person for liabilities arising from such failure irrevocably prejudices Borrowers' ability to defend such litigation Person's own gross negligence or proceedingwillful misconduct. In case any such litigation litigation, or proceeding shall be brought against any Indemnified Person the preparation therefor, the Lenders, the Arranger, the Syndication Agent, the Documentation Agent and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers Administrative Agent shall be entitled to participate in such litigation or proceeding select a single law firm as their own counsel and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory in addition to the Indemnified Person in foregoing indemnity, the exercise of its reasonable judgment. Notwithstanding REIT, the election of Borrowers and the other Obligors agree to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear pay promptly the reasonable fees, costs fees and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrowercounsel. If, and such Indemnified Person shall have reasonably concluded to the extent that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf obligations of the Indemnified Person); (iii) REIT, the Borrowers shall not have employed counsel satisfactory to such Indemnified Person in and the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due other Obligors under this Section 2.22 16 are unenforceable for any reason, the REIT, the Borrowers and the other Obligors hereby agree to make the maximum contribution to the payment in satisfaction of such obligations which is permissible under applicable law. The provisions of this Section 16 shall be payable within ten (10) days survive the repayment of written demand thereforthe Loan and the termination of the obligations of the Lenders hereunder.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Heritage Property Investment Trust Inc)
General Indemnity. Without limiting (a) The Lessee, whether or not any other provision of this Agreement or of the ----------------- transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person, except as specifically provided in Section 12.1(b), on an After Tax Basis from and against any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesClaims which may be imposed on, incurred by such or asserted against an Indemnified Person in any way relating to or arising or alleged to arise out of (i) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any claim, litigation, investigation other disposition of the Property or proceeding any part thereof; (ii) any latent or other defects in any Property whether or not such discoverable by an Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby Lessee; (includingiii) a violation of Environmental Laws, without limitation, Environmental Claims or other loss of or damage relating to the properties or business of any BorrowerProperty; (iv) the Operative Agreements, or any default transaction contemplated thereby; (v) any breach by the Lessee of any of its representations or warranties under the Operative Agreements or failure by the Lessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; and (vi) personal injury, death or property damage relating to the Property, including Claims based on strict liability in tort; but in any event excluding (v) Claims to the extent such Claims are found by a Borrower in the performance or observance final decision of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from solely out of the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, (w) Claims to the extent such Claims arise solely out of such gross negligenceevents occurring after the expiration of the Term and after the Lessee's discharge of all its obligations under the Lease, willful misconduct (x) any Taxes including any Claim (or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any portion of a Claim) made upon an Indemnified Person in respect by a third party that at its origin is based upon a Tax (other than amounts necessary to make any payments hereunder on an After Tax Basis, where the Lessee is otherwise specifically required to make such payments on an After Tax Basis), (y) Claims to the extent such Claims arise solely from legal proceedings commenced against an Indemnified Party by any security holder or creditor thereof arising out of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any and based upon rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case afforded any such litigation security holder or proceeding shall be brought creditor solely in its capacity as such or (z) Claims to the extent such Claims arise solely from legal proceedings commenced against an Indemnified Party by any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers Transferee. The Lessee shall be entitled to participate in such litigation or proceeding andcontrol, after written notice from Borrowers to such Indemnified Person, to and shall assume full responsibility for the defense of any Claim; provided, however, that the Trust, the Trust Company, -------- ------- the Agent and the Investors named in such litigation or proceeding with counsel of its choice at its expenseClaim, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ each retain separate counsel at the expense of Borrowers, provided that Borrowers the Lessee in the event of and to the extent of a conflict or a potential conflict. The Lessee and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such notice by an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent a condition to the entry Lessee's obligations under this Section 12.1, except to the extent failure to give such notice materially prejudices Lessee's rights hereunder. After an Indemnified Person has been fully indemnified for a Claim pursuant to this Section 12.1, and so long as no Event of Default under the Lease shall have occurred and be continuing, the Lessee shall be subrogated to any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to right of such Indemnified Person of a release from all liability in with respect to such claim Claim. None of the Indemnified Persons shall settle a Claim without the consent of the Lessee, which consent shall not be unreasonably withheld or litigation. The agreements delayed.
(a) Except with respect to Claims imposed, incurred or asserted pursuant to (i) clause (iii) of Borrowers Section 12.1(a), (ii) a breach of the representations made by Lessee pursuant to Section 7.5(m), or (iii) a violation by Lessee of the covenants contained in this Section 2.22 9.1 of the Lease and Section 2.7(a) of the Agency Agreement with respect to Environmental Laws or Section 9.2 of the Lease, the Lenders and the Agent shall not be in addition deemed to any liability that Borrowers may otherwise have. All amounts due under this be Indemnified Parties for the purpose of Section 2.22 shall be payable within ten (10) days of written demand therefor12.1 but only for the Construction Period and only with respect to Construction Period Property.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document(a) Borrower, Borrowers hereby jointly at its sole cost and severally indemnify each Lenderexpense, the Agent shall protect, indemnify, reimburse, defend and their respective hold harmless Lender and its officers, directors, officers, employees, Affiliates employees and agents (collectively, "the “Indemnified Persons"Parties”) for, from and against, and agree to hold each such Indemnified Person harmless fromshall be responsible for, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder Damages of any Borrower, and related expenses, including reasonable counsel fees and expenseskind or nature whatsoever which may be imposed on, incurred by such by, or asserted against any of the Indemnified Person Parties, in any way relating to or arising out of any claim, litigation, investigation (i) the making or proceeding (whether holding or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are enforcement of the subject or arise in connection with or as a result of this Agreement Loan by Lender or the transactions contemplated hereby administration of the Transaction; (ii) ownership of the Note or the Mortgage (including, without limitation, relating to any tax on the properties or business making and/or recording of any Borrowerof the Loan Documents), or any default interest in the Property or receipt of any rents or Revenues; (iii) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (iv) any use, nonuse or condition in, on or about the Property any part thereof or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (v) any failure on the part of Borrower to perform or comply with any of the terms of the Loan Documents; (vi) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof; (vii) any failure of the Property to comply with any Legal Requirements; (viii) any representation or warranty made by a Borrower in any of the performance Loan Documents being false or observance misleading in any material respect as of the date such representation or warranty was made; (ix) any claim by brokers, finders or similar persons claiming to be entitled to a commission in connection with any lease or other transaction involving the Property or any part thereof under any legal requirement or any liability asserted against any Indemnified Party with respect thereto; and (x) any and all claims and demands whatsoever that may be asserted against any Indemnified Party by reason of any representationalleged obligations or undertakings on such party’s part to perform or discharge any of the terms, warrantycovenants, covenant or condition agreements contained in this Agreement any Lease, in each case, to the extent resulting, directly or indirectly, from any other Loan Document)claim (including any Environmental Claim) made (whether or not in connection with any legal action, suit, or proceeding) by or on behalf of any Person; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder to the extent that such indemnity shall not apply to any such lossesDamages have been found by a final, claims, damages, or liabilities or related expenses determined by non-appealable judgment of a court of competent jurisdiction to have arisen resulted from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified PersonParty.
(b) Upon written request by any Indemnified Party, and if Borrower shall defend such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against Party (if requested by any Indemnified Person Party, in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure name of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person Party) by attorneys and other professionals reasonably approved by such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgmentParty. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingforegoing, such any Indemnified Person shall have the right to employ separate counsel and to participate Party may, in the defense event of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; , engage its own attorneys and other professionals to defend or assist it (ii) chosen at Lender’s sole discretion), and, at the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and option of such Indemnified Person Party, its attorneys shall have reasonably concluded that there may be legal defenses available to it which are different from control the resolution of any claim or additional to those available to any proceeding. Upon demand, Borrower (shall pay or, in which case Borrowers shall not have the right to direct the defense of such action on behalf sole discretion of the Indemnified Person); Parties, reimburse, the Indemnified Parties for the payment of reasonable fees and disbursements of attorneys, engineers, environmental consultants, laboratories and other professionals in connection therewith.
(iiic) Borrowers shall not have employed counsel satisfactory Any amounts payable to such Indemnified Person in the exercise Lender by reason of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice application of this Section 5.18 shall be secured by the institution of such litigation or proceeding; or (iv) Borrowers Mortgage and shall authorize such Indemnified Person to employ separate counsel become immediately due and payable and shall bear interest at the expense of Borrowers, provided that Borrowers shall not be liable for Default Rate from the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving date Damages are sustained by the claimant or plaintiff to such Indemnified Person Parties until paid.
(d) The provisions of a release from all liability in respect to such claim or litigation. The agreements of Borrowers and undertakings and indemnification set forth in this Section 2.22 5.18 shall be survive the satisfaction and payment in addition to any liability that Borrowers may otherwise have. All amounts due under full of the Indebtedness and termination of this Section 2.22 shall be payable within ten (10) days of written demand thereforAgreement.
Appears in 1 contract
General Indemnity. Without limiting The Grantor must indemnify the Secured Party, each Authorised Representative and agent of the Secured Party, each Receiver of the Grantor or each Receiver appointed in relation to any property of the Grantor, each Attorney, and any other provision person appointed under a Finance Document or the Corporations Act by or on behalf of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify the Secured Party (each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "an Indemnified Persons"Person) against, and agree to hold must pay each such Indemnified Person harmless fromwithin three Business Days of demand the amount of, any and all claimsLosses reasonably paid, damages and liabilities, including claims brought by any shareholder suffered or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in connection with:
(a) the exercise occurrence of any Event of Default or Review Event;
(b) investigating any event which the Secured Party reasonably believes is an Event of Default or Review Event;
(c) the administration, and any actual or attempted preservation or enforcement, of any rights, powers, discretions and/or remedies under or properly corresponding to any Finance Document and/or any transaction contemplated by any of them;
(d) any information produced or approved by any of GFN, the Grantor, GFN Holdings or GFN USA Holdings under or in connection with the Finance Documents or the transactions they contemplate being or being alleged to be misleading or deceptive in any respect;
(e) acting or relying on any notice, consent, request, instruction, demand, approval or other communication or other document (including any of the foregoing given by fax or electronic communication (such as by email) or verbally (such as by telephone)) which it reasonably believes to be genuine, correct and appropriately authorised;
(f) any enquiry, investigation, subpoena (or similar order) or litigation with respect of any of GFN, the Grantor, GFN Holdings or GFN USA Holdings, or with respect to the transactions contemplated or financed under any Finance Document;
(g) a failure by any of GFN, the Grantor, GFN Holdings or GFN USA Holdings to pay any amount due under a Finance Document on its reasonable judgment. Notwithstanding due date or any financial accommodation provided to any of GFN, the election of Borrowers to assume the defense of such litigation Grantor, GFN Holdings or proceedingGFN USA Holdings under a Finance Document being repaid or becoming due for repayment other than on its scheduled payment date, such including Losses an Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation pays, suffers or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if incurs because of:
(i) the use cancellation, termination, unwinding or alteration of counsel chosen any swap or other arrangement made by Borrowers to represent such an Indemnified Person would present such counsel with a conflict of interestto fund the financial accommodation or other payment; or
(ii) any liquidation or re-employment of deposits or other funds acquired by any Indemnified Person to fund the defendants infinancial accommodation or other payment;
(h) the Secured Property or anything done or omitted to be done in connection with the Secured Property;
(i) anything any of GFN, the Grantor, GFN Holdings or targets of, any such litigation GFN USA Holdings is required to do or proceeding include both an Indemnified Person and is permitted to do under any Borrowerclause in any Finance Document relating or referring to any PPS Law, and such or any action taken by an Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from under or additional to those available in relation to any Borrower PPS Law, including any registration, or any response to an amendment demand or a request under section 275 of the PPSA;
(j) an Indemnified Person agreeing or providing an indemnity in which case Borrowers shall not have favour of or reimbursing or agreeing to reimburse any Receiver of any of the right to direct Grantor, GFN Holdings or GFN USA Holdings or any property of any of the defense of such action Grantor, GFN Holdings or GFN USA Holdings, any Attorney, any other person appointed under a Finance Document, and/or any other person appointed under the Corporations Act by or on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons Secured Party in connection with any of the same action and Grantor, GFN Holdings or GFN USA Holdings or any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry property of any judgment of the Grantor, GFN Holdings or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.GFN USA Holdings;
Appears in 1 contract
Samples: Securities Purchase Agreement (General Finance CORP)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableabsolute liability in tort. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
Samples: Participation Agreement (Centennial Healthcare Corp)
General Indemnity. Without limiting any other provision Subject to and limited by in all respects the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 11.6 through 11.8 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to assume any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the defense financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of such litigation any Property or proceeding with counsel any part thereof, including without limitation the acquisition, holding or disposition of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person any interest in the exercise Property, lease or agreement comprising a portion of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interestany thereof; (iib) the defendants in, any latent or targets of, other defects in any such litigation Property or proceeding include both any portion thereof whether or not discoverable by an Indemnified Person and any Borroweror the Indemnity Provider; (c) a violation of Environmental Laws, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from Environmental Claims or additional to those available other loss of or damage to any Borrower property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (in d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which case Borrowers shall not have the right Indemnity Provider is a party or failure by the Indemnity Provider to direct the defense of such action on behalf perform or observe any covenant or agreement to be performed by it under any of the Indemnified Person)Operative Agreements; (iiif) Borrowers shall not have employed counsel satisfactory to such Indemnified Person the transactions contemplated hereby or by any other Operative Agreement, in the exercise respect of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice application of the institution Parts 4 and 5 of such litigation Subtitle B of Title I of ERISA; (g) personal injury, death or proceeding; property damage, including without limitation Claims based on strict or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.absolute
Appears in 1 contract
Samples: Participation Agreement (Sunrise Assisted Living Inc)
General Indemnity. Without limiting Whether or not the transactions contemplated hereby are consummated, the Companies shall indemnify, defend and hold the Agent-Related Persons, and each Bank and each of its respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against any other provision and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and the termination, resignation or replacement of the Agent or replacement of any Bank) be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilitiesforegoing, including claims brought by with respect to any shareholder investigation, litigation or former shareholder of proceeding (including any Borrower, and Insolvency Proceeding or appellate proceeding) related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person to or arising out of any claimthis Agreement or the Loans or the use of the proceeds thereof, litigation, investigation or proceeding (whether or not such any Indemnified Person is a party thereto) relating thereto (all the foregoing, collectively, the "Indemnified Liabilities"); provided that the Companies shall have no obligation hereunder to any transactions, services or matters that are the subject or arise in connection Indemnified Person with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating respect to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Indemnified Liabilities resulting solely from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days survive payment of written demand thereforall other Obligations.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers The Lessee hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") againstassumes liability for, and agree (whether or not any of the transactions contemplated hereby shall be consummated and whether or not the Lease, any Lease Supplement or other Operative Document has expired or been terminated) agrees to defend, indemnify, protect, release, save and hold harmless and keep whole each such Indemnified Person harmless fromPerson, on an After-Tax Basis, from and against any and all claims, damages and liabilities, liabilities (including claims brought by any shareholder but not limited to liabilities arising out of the doctrine of strict liability or former shareholder arising out of violation of regulatory requirements of any Borrowerkind), and related obligations, losses, damages, penalties, claims (including Environmental Claims), actions, suits, judgments, costs, expenses, charges, fees and disbursements (including reasonable counsel out of pocket fees and expenses, Fees and Expenses and costs of investigation), whether any of the foregoing be founded or unfounded, of whatsoever kind and nature (collectively, the "Claims") that may be imposed on, incurred by such or asserted against any Indemnified Person or any Equipment, in any way relating to or arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party theretoa) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement Equipment or the transactions contemplated hereby Operative Documents (including, without limitation, relating to the properties performance or business enforcement of all obligations of the Lessee or the Guarantor under the Operative Documents and payments made pursuant thereto or any other transactions contemplated thereby or the breach of any Borrowercovenant or agreement contained therein by the Lessee or the Guarantor, or the falsity of any representation or warranty made therein by the Lessee or the Guarantor), or the design, manufac- ture, construction, reassembly, purchase, acceptance, possession, rejection, control, financing, refinancing, modification, alteration, testing, non-use, ownership, delivery, nondelivery, use, operation, leasing, subleasing, condition, maintenance, repair, sale, abandonment, storage, substitution, insurance, redelivery or de-installation, return or other disposition of the Equipment or any Item thereof (whether or not such Equipment or Item is in compliance with the Operative Documents), (b) any other disposition of, or the imposition of any Lien (or incurrence of any liability to refund or pay over any amount as a result of any Lien) on, the Equipment or any interest therein, including, without limitation, any claim or penalty arising out of violations of Applicable Law, or in tort (whether creating a strict liability or otherwise) or arising from the active or passive negligence of an Indemnified Person, latent or other defects, whether or not discoverable by any Indemnified Person, or any default by a Borrower other Person, loss of or damage to any property or the environment, death of or injury to any Person and any claim for patent, trademark or copyright infringement, (c) the offer, issuance, sale, resale or delivery of any Note or any direct or beneficial interest under any Operative Document, (d) any Event of Default, any Event of Loss, any redemption, refunding, prepayment or transfer of the Notes made in accordance with the Operative Documents, any amendment, modification or supplement to any Operative Document, or any transfer of all or any part of the right, title and interest of the Owner Trustee or any Owner Participant in the performance Trust Estate or observance in, to and under any of the Operative Documents, (e) the presence, Release or threatened Release of any representationHazardous Substance in, warrantyon, covenant at or condition in this Agreement from any Item of Equipment or any other Loan Document)facility or site in or on which any Item of Equipment is or was present, stored, used, recycled, managed, treated, disposed of, or located at any time, (f) any transport, treatment, recycling, storage, Release, disposal or arrangement therefor, of any Hazardous Substance generated by, used in connection with or otherwise present in or on any Item of Equipment or any facility or site in or on which any Item of Equipment is or was present, stored, used, recycled, managed, treated, disposed of, or located at any time, (g) any Environmental Law or any published policy or guidance document issued in connection therewith or demand of a Governmental Authority applicable in any way whatsoever related to any Item of Equipment or any facility or site in or on which any Item of Equipment is or was present, stored, used, recycled, managed, treated, disposed of, or located at any time, (h) any loss of or damage to any property, natural resources or the environment, or death of or injury to any Person, resulting from or relating to any Hazardous Substance that is or was present, used, generated, treated, stored, recycled, managed, transported or Released in connection with any Item of Equipment or any facility or site in or on which any Item of Equipment is or was present, stored, used, recycled, managed, treated, disposed of or otherwise located at any time or (i) any non- exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code; provided, however, that such indemnity the Lessee shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers required pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so 6.1 to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.indemnify:
Appears in 1 contract
General Indemnity. Without limiting Whether or not the transactions contemplated hereby are consummated, the Company shall indemnify, defend and hold the Bank, its Affiliates and each of their respective officers, directors, employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person") harmless from and against (and will reimburse each Indemnified Person as the same are incurred for) any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs (other provision than the allocated cost of in-house legal services incurred in connection with the matters referred to in Section 10.04(a)) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans) be imposed on, incurred by or asserted against any such Person in any way relating to or arising out of this Agreement or any document contemplated by or referred to herein, or the transactions contemplated hereby, or any action taken or omitted by any such Person under or in connection with any of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilitiesforegoing, including claims brought by with respect to any shareholder investigation, litigation or former shareholder of proceeding (including any Borrower, and Insolvency Proceeding or appellate proceeding) related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person to or arising out of any claimthis Agreement or the Loans or the use of the proceeds thereof, litigation, investigation or proceeding (whether or not such any Indemnified Person is a party thereto) relating thereto (all the foregoing, collectively, the "Indemnified Liabilities"); provided that the Company shall have no obligation hereunder to any transactions, services or matters that are the subject or arise in connection Indemnified Person with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating respect to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Indemnified Liabilities resulting solely from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person. In connection with any claim, and if such Indemnified Person is a directoraction, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation suit or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified PersonCompany shall, except that no Borrower waives any rights for damages incurred by it on account at the direction of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and at the Company's sole cost and expense, defend such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be using legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the such Indemnified Person's reasonable judgment to represent sole discretion; provided that, in the event that the Company is resisting or defending any such claim, action, suit or proceeding, any separate Attorney Costs incurred by such Indemnified Person within a reasonable in connection therewith shall be for such Indemnified Person's own account until such time after notice of as (i) the institution Indemnified Person assumes the resistance or defense of such litigation claim, action, suit or proceeding or (ii) there exists a conflict of interest between the Company and such Indemnified Person in respect of such claim, action, suit or proceeding; provided further that, in connection with any claim, action, suit or (iv) Borrowers proceeding, in no event shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not Company be liable for the fees, costs fees and expenses of more than one separate outside counsel at the same time for all Indemnified Persons (unless more than one outside counsel is reasonably deemed necessary by an Indemnified Person to avoid any conflicts of interest). Notwithstanding anything to the contrary contained herein: (y) no settlement or compromise of any liability with respect to which the Company is liable to any Indemnified Person shall be made without the Company's prior written consent, which consent may be granted or withheld in its sole discretion; and (z) the Company shall not be entitled to settle or compromise any claim, action, suit or proceeding involving any Indemnified Person without the prior written consent of such Indemnified Persons Person, which consent may be granted or withheld in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforPerson's sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Efunds Corp)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any other Person (including, without limitation, relating but not to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, willful misconduct or subjective bad faith willful breach of such Indemnified Person) in any way relating to or arising, and if or alleged (by any Person asserting such a Claim against an Indemnified Person) to arise, out of the execution, delivery, performance or enforcement of this Agreement, the Lease, any other Operative Agreement or the Bridge Loan Documents or on or with respect to any Ancillary Property or Property or any part thereof, 45 50 including, without limitation, Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of an Ancillary Property, a Property, or any part thereof, including the acquisition, holding or disposition of any interest in any Ancillary Property, Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defect in any property whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any Environmental Claim, any violation of Environmental Laws, or any other loss of or damage to any property or the environment relating to any Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby, or the Bridge Loan Documents or any transaction contemplated thereby; (e) any breach by the Construction Agent or the Lessee of any of its representations or warranties under the Operative Agreements to which it is a director, officer, employee, Affiliate party or agent of a Lender failure by the Construction Agent or the AgentLessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, thenin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) any personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; (h) any easement, right, agreement or document referred to in Section 10.5 of this Agreement; or (i) any Lien on any Ancillary Property or any Property (other than Liens created by the extent of such gross negligence, willful misconduct Operative Agreements or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableLessor Liens). If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding) for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that, in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding30-day period, such Indemnified Person shall have endeavor, in such notice to the right Indemnity Provider, to employ separate counsel and to participate in inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at give the expense of Borrowers, provided that Borrowers notices referred to in this sentence shall not be liable for diminish the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent Indemnity Provider's obligation hereunder except to the entry of any judgment or enter into any settlement in any extent such litigation or proceeding unless failure materially precludes the Indemnity Provider from contesting such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforClaim.
Appears in 1 contract
Samples: Participation Agreement (Wackenhut Corrections Corp)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers The Owner hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilitiesdisbursements, including claims brought by any shareholder or former shareholder of any Borrower, whatsoever kind and related expenses, including reasonable counsel fees and expensesnature (collectively called “Expenses”) imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any lease or sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Liquidity Provider, the Intercreditor Agreement and the Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement or (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the properties meaning of Section 15 of the Securities Act of 1933, as amended); provided that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or business arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities or any Pass Through Trust Agreement or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this Agreement any of the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities or any other Pass Through Trust Agreement applicable to it including, without limitation, the creation or existence of a Loan Participant Lien or an Indenture Trustee’s Lien (except to the extent such failure was caused directly by the failure of the Owner to perform any obligation under an Owner Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified PersonIndemnitee (or any member of the Related Indemnitee Group) (other than gross negligence imputed to such Indemnitee (or any member of the Related Indemnitee Group) solely by reason of its interest in the Aircraft), and if or (D) with respect to any Indemnitee, a disposition (voluntary or involuntary) by such Indemnified Person Indemnitee of all or any part of such Indemnitee’s interest in the Airframe, any Engine or in the Operative Documents other than during the continuance of an Event of Default under the Trust Indenture, or (E) any Tax whether or not the Owner is required to indemnify for such Tax pursuant to Section 7(b) hereof (it being understood that Section 7(b) hereof provides for the Owner’s liability with respect to Taxes), or (F) in the case of an Indemnitee which is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.Loan
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject to the provisions of this Agreement or of any other Loan DocumentSection 11.7, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableapplicable Property. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider’s reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider’s expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentThe Guarantor and the Tenant, Borrowers hereby jointly and severally indemnify each Lenderseverally, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, hereby assume liability for and agree to defend, indemnify and hold harmless each such Indemnified Person harmless from, on an After Tax Basis from and against any and all claimsClaims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenseswhich may be imposed on, incurred by such or asserted against an Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating other than to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, willful misconduct or subjective bad faith willful breach of such Indemnified Person) in any way relating to or arising out of the execution, and if such delivery, performance or enforcement of this Participation Agreement, or any other Operative Document or on or with respect to any Mortgaged Property, including, without limitation, Claims in any way relating to or arising out of (a) the financing or refinancing, purchase, acceptance, rejection, ownership, design, leasing, subleasing, possession, use, operation, repair, modification, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of a Mortgaged Property or any part thereof; (b) any latent or other defects in any Property whether or not discoverable by any Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the AgentTenant; (c) the Operative Documents, thenor any transaction contemplated thereby; (d) any breach by the Guarantor or the Tenant of any of their representations or warranties under the Operative Documents or failure by the Guarantor or the Tenant to perform or observe any covenant or agreement to be performed by them under any of the Operative Documents; and (e) personal injury, death or property damage, including Claims based on strict liability in tort; but excluding
(i) Claims (except Claims against the Trust Company (including claims arising from Taxes or other impositions set forth in clause (iii) of the exclusions to the definition of "Impositions" set forth in Article VI)) to the extent such Claims arise solely out of events occurring after the expiration of the terms of all Leases and after the Tenant's discharge of all its obligations under the Operative Documents or (ii) any Taxes (disregarding with respect to the Trust Company the exclusions set forth in clause (v), to the extent attributable to action taken or not taken by the Issuer at the direction of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender the Owner Beneficiary or the AgentCollateral Trustee, as applicable. If and clause (ix) of the exclusions to the definition of Impositions set forth in Article VI) including any litigation Claim (or proceeding is brought against any portion of a Claim) made upon an Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant by a third party that at its origin is based upon a Tax (other than amounts necessary to this Section 2.22make any payments hereunder on an After Tax Basis, where the Tenant is otherwise specifically required to make such Indemnified Person shall promptly notify Borrowers in writing of payments on an After Tax Basis). The Guarantor and the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers Tenant shall be entitled to participate in such litigation or proceeding andcontrol, after written notice from Borrowers to such Indemnified Person, to and shall assume full responsibility for the defense of such litigation or proceeding with counsel of its choice at its expenseany Claim; provided, provided however, that such counsel is satisfactory to the any Indemnified Person named in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingClaim, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ each retain separate counsel at the expense of Borrowersthe Tenant and the Guarantor; provided, provided further, that Borrowers such parties shall use reasonable efforts to share counsel to the extent practicable and minimize the fees of counsel being reimbursed hereunder. The Tenant, the Guarantor and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such notice by an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent a condition to the entry Tenant's and Guarantor's obligation under this Section 9.1, except to the extent failure to give such notice prejudices the Tenant's or Guarantor's rights hereunder. After an Indemnified Person has been fully indemnified for a Claim pursuant to this Section 9.1, and so long as no default shall have occurred and be continuing under any Lease, the Tenant and the Guarantor shall be subrogated to any right of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in (except against another Indemnified Person) with respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforClaim.
Appears in 1 contract
General Indemnity. Without limiting The Lessee agrees, whether or not any of the transactions contemplated hereby shall be consummated and whether or not the Facility Lease, any other provision of this Agreement Transaction Document or of any other Loan DocumentFinancing Document shall have expired or have been terminated, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") againstto assume liability for, and the Lessee does hereby agree to hold indemnify, protect, defend, save and keep harmless each such Indemnified Person harmless fromIndemnitee, on an After-Tax-Basis, from and against, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesClaims which may be imposed on, incurred by or asserted against any Indemnitee (whether because of act or omission by such Indemnified Person arising out of any claim, litigation, investigation Indemnitee or proceeding (otherwise and whether or not such Indemnified Person is a party theretoIndemnitee shall also be indemnified as to any such Claim by any other Person) in any way relating to or arising out of (i) Xxxx 0, the Undivided Interest, the Real Property Interest, PYNGS or the PVNGS Site, or any transactionspart of any thereof (or any beneficial interest therein) , services any ANPP Project Agreement, the' issuance or matters that are payment of the subject Bonds or arise in connection with or as a result of the Notes, this Participation Agreement or the transactions contemplated hereby any other Transaction Document or any Financing Document (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance enforcement of any representationof the obligations and terms hereunder or thereunder), warranty(ii) a disposition of all or any part of the Undivided Interest, covenant or condition in this Agreement the Real Property Interest, Unit 1 or any other Loan Documentinterest of the Owner Trustee or Owner Participant in connection with any termination of the Facility Lease, or (iii) the design, manufacture, financing, erection, purchase, acceptance, rejection, ownership, acquisition, delivery, nondelivery, lease, sublease, preparation, installation, repair, transfer of title, abandonment, possession, use, operation, maintenance, condition, sale, return, storage, disposition, or decommissioning (including, but without limitation, with respect 6091.50.2831.27:2 to the Termination Obligation) of the Undivided Interest, Unit 1, the Real Property Interest, any Capital Improvement, the PVNGS Site, any other facilities on the PVNGS Site or any other interest of the Owner Trustee or Owner Participant in any thereof or any accident, nuclear incident or extraordinary nuclear occurrence in connection therewith (including, without limitation, (A) claims or penalties arising from any violation of law or liability in tort (strict or otherwise) or from the active or passive negligence of any Indemnitee, (B) loss of or damage to any property or the environment or death or injury to any Person, (C) latent and other defects, whether or not discoverable, (D) any claim for patent trademark, service-xxxx or copyright infringement and (E) any claim of any Indemnitee incurred in the administration of this Participation Agreement, any other Transaction Document or any Financing Document and not paid as Transaction Expenses or included in Facility Cost and, if not included in Transaction expenses, the reasonable fees and disbursements of counsel and other professionals incurred in connection therewith); provided, however, that such indemnity the Lessee shall not apply be required to indemnify any Indemnitee pursuant to this section 13(a), (1) for any Claim in respect of unit 1, the undivided Interest or the Real Property Interest arising from acts or events not attributable to the Lessee which occur after redelivery of the undivided Interest to the Owner Trustee in accordance with section 5 of the Facility Lease, except to the extent expressly provided in any Transaction Document, the ANPP Participation Agreement or any other agreement or undertaking of the Lessee, (2) for any Claim against such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Indemnitee resulting solely from acts which would constitute the gross negligence, willful misconduct or subjective bad faith gross negligence of such Indemnified PersonIndemnitee (unless imputed to such Indemnitee by reason of Xxxx 0, and if such Indemnified Person is the undivided Interest, the Real Property Interest, PVNGS, the PVNGS Site or any other facilities at the PVNGS Site or any occurrence in connection with any thereof), (3) for any Transaction Expense to be paid by the Owner Trustee pursuant to Section 14(a) or (4) for any Claim resulting solely from a director, officer, employee, Affiliate or agent of a Lender transfer by the Owner Trustee or the AgentOwner Participant of all or part of its interest in the Facility Lease, thenunit 1, the Real Property Interest or the undivided Interest other than in connection with any early termination of the Facility Lease or any exercise 6091. 50.2831.27:2 of remedies under Section 16 thereof or the transfer contemplated by Section 7(b)(4) or the first transfer by the Owner Participant to an Affiliate of the Owner Participant. To the extent that an Indemnitee in fact receives indemnification payments from the Lessee under the indemnification provisions of this Section 13(a), the Lessee shall be subrogated, to the extent of such gross negligenceindemnity paid, willful misconduct to such Indemnitee's rights with respect to the transaction or subjective bad faithevent requiring or giving rise to such indemnity, but only so long as such indemnity subrogation shall not apply to materially adversely affect the rights of such Lender Indemnitee or any other Indemnitee hereunder. Nothing herein contained shall be construed as constituting a guaranty by the Lessee of the principal of or premium, if any, or interest on the Notes or the Agent, as applicable. If any litigation Bonds or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation residual value or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure useful life of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforundivided Interest.
Appears in 1 contract
Samples: Participation Agreement (Public Service Co of New Mexico)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction) in any way relating to have arisen or arising or alleged to arise out of the negotiation, execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or with respect to or on any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, nondelivery, leasing, subleasing, of the Property, (b) the possession, use, occupancy, operation, maintenance, repair, modification, or transportation of the Property by the Lessee, (c) the condition, sale, return, repossession (whether by summary proceedings or otherwise), or any disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in any Property, lease or agreement comprising a portion of any thereof; (d) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (e) a violation of, or penalties arising from any violation of, Environmental Laws, Environmental Claims or other loss of or damage to any property or the gross negligenceenvironment, willful misconduct or subjective bad faith including any claim relating to any Property (except to the extent such violation is solely related to and arose after foreclosure of Lessee's interest in such Property and after Lessee's surrender of possession with respect to such Property in accordance with the Operative Agreements and after Lessee has provided a Phase I environmental site assessment recently prepared (no more than thirty (30) days prior to the date when Lessee has delivered possession of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or Property) by an independent recognized professional reasonably acceptable to the Agent, thenand in form, scope and content reasonably satisfactory to the extent of such gross negligenceAgent), willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender the Lease or the AgentIndemnity Provider; (f) the Operative Agreements, as applicableor any transaction contemplated thereby; (g) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (h) the transactions contemplated hereby or by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (i) personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; (j) any claim for patent, trademark or copyright infringement relating to events or circumstances at the Property; (k) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for any Property, and (l) any condition of any Property which violates any covenant, condition, representation or warranty by Lessee in the Operative Agreements. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period unless the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available required by such law or regulation to it which are different from or additional take action prior to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense end of such action on behalf seven (7) day period; provided, further, that the failure of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the reasonable expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request in writing that the Indemnity Provider conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld or delayed; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a potential conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall not be liable made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the feespayment of an amount regarding such Claim, costs and except reasonable expenses of more than one separate counsel at the same time for all therefrom incurred by such Indemnified Persons Person in connection with the same response to such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable and properly documented out-of-pocket costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any material part thereof or material interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent reputable counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
Samples: Participation Agreement (Cypress Semiconductor Corp /De/)
General Indemnity. Without limiting any other provision (a) Indemnification by the Company. the Company will indemnify and hold harmless the Purchaser, each of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective its directors, fund managers and officers, employeesand each person, Affiliates if any, who controls the Purchaser within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act from and agents against any losses, claims, damages, liabilities and expenses (collectivelyincluding reasonable costs of defense and investigation and all reasonable attorneys' fees) to which the Purchaser, "Indemnified Persons") againsteach of its directors, fund managers and officers, and agree to hold each such Indemnified Person harmless fromperson, any and all claimsif any, damages and liabilitieswho controls the Purchaser may become subject, including claims brought by any shareholder under the Securities Act or former shareholder of any Borrowerotherwise, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or insofar as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, liabilities and expenses (or liabilities actions in respect thereof) arise out of or related expenses determined are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained, or incorporated by reference, in the Registration Statement relating to Common Stock being sold to the Purchaser (including the any prospectus supplement filed in connection with the transactions contemplated hereunder (the "Prospectus Supplement") which are a part of it), or any amendment or supplement to it, or (ii) the omission or alleged omission to state in that Registration Statement or any document incorporated by reference in the Registration Statement, a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that the Company shall not be liable under this Section 8.1(a) to the extent that a court of competent jurisdiction shall have determined by a final judgment (with no appeals available) that such loss, claim, damage, liability or action resulted directly from any such acts or failures to have arisen from act, undertaken or omitted to be taken by the gross negligence, willful misconduct Purchaser or subjective such person through its bad faith of such Indemnified Personor willful misconduct; provided, and if such Indemnified Person is a directorhowever, officer, employee, Affiliate or agent of a Lender or that the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such foregoing indemnity shall not apply to such Lender any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Purchaser expressly for use in the Registration Statement, any preliminary prospectus or the AgentProspectus (or any amendment or supplement thereto); and provided, as applicable. If any litigation or proceeding is brought against any Indemnified Person in further, that with respect of which to the Prospectus, the foregoing indemnity may be sought against Borrowers pursuant shall not inure to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing the benefit of the commencement of Purchaser or any such litigation person from whom the person asserting any loss, claim, damage, liability or proceedingexpense purchased Common Stock, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure if copies of the Indemnified Person Prospectus were timely delivered to timely notify Borrowers the Purchaser pursuant hereto and a copy of the commencement of such litigation Prospectus (as then amended or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of supplemented if the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person Company shall have the right to employ separate counsel and to participate in the defense of such litigation furnished any amendments or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (isupplements thereto) the use of counsel chosen was not sent or given by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory Purchaser or any such person to such Indemnified Person in person, if required by law so to have been delivered, at or prior to the exercise written confirmation of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice sale of the institution of Common Stock to such litigation person, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Company will reimburse the Purchaser and each such controlling person promptly upon demand for any legal or other costs or expenses reasonably incurred by the Purchaser or any controlling person in investigating, defending against, or preparing to defend against any such claim, action, suit or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at , except that the expense of Borrowers, provided that Borrowers shall Company will not be liable to the extent a claim or action which results in a loss, claim, damage, liability or expense arises out of, or is based upon, an untrue statement, alleged untrue statement, omission or alleged omission, included in any Registration Statement, Prospectus or Prospectus Supplement or any amendment or supplement to the thereto in reliance upon, and in conformity with, written information furnished by the Purchaser to the Company for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action inclusion in the same jurisdiction. Borrowers shall not consent to the entry of any judgment Registration Statement, Prospectus or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforProspectus Supplement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Usinternetworking Inc)
General Indemnity. Without limiting The Company shall indemnify the Lenders and the Agent and hold them harmless from any other provision liability, loss or damage resulting from the violation by the Company of this Agreement Section 2.4. In addition, the Company shall indemnify each Lender, the Agent, the Syndication Agent, each of the Lenders' or of the Agent's or the Syndication Agent's directors, officers, employees, agents, attorneys, accountants, consultants and each Person, if any, who controls any other Loan Document, Borrowers hereby jointly and severally indemnify Lender or the Agent (each Lender, the Agent and their respective each of such directors, officers, employees, Affiliates agents, attorneys, accountants, consultants and agents (collectively, control Persons is referred to as an "Indemnified PersonsINDEMNIFIED PARTY") against, and agree to hold each such Indemnified Person of them harmless from, from and against any and all claims, damages damages, liabilities and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, reasonable expenses (including reasonable counsel fees and expensesdisbursements of counsel with whom any Indemnified Party may consult in connection therewith and all reasonable expenses of litigation or preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party relating to, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result by reason of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document)Credit Document in connection with (a) the Indemnified Party's compliance with or contest of any subpoena or other process issued against it in any proceeding involving the Company or any of its Subsidiaries or their Affiliates, (b) any litigation or investigation involving the Company, any of its Subsidiaries or their Affiliates, or any officer, director or employee thereof, (c) the existence or exercise of any security rights with respect to the Credit Security in accordance with the Credit Documents, or (d) this Agreement, any other Credit Document or any transaction contemplated hereby or thereby; providedPROVIDED, howeverHOWEVER, that such the foregoing indemnity shall not apply (i) to litigation commenced by the Company against the Lenders or the Agent or the Syndication Agent which seeks enforcement of any of the rights of the Company hereunder or under any other Credit Document and is determined adversely to the Lenders or the Agent or the Syndication Agent in a final nonappealable judgment or (ii) to the extent such losses, claims, damages, or liabilities or related and expenses determined by a court of competent jurisdiction to have arisen result from the Indemnified Party's own gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicablemisconduct. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforTHE COMPANY EXPRESSLY ACKNOWLEDGES THAT IT MAY BE REQUIRED TO INDEMNIFY PERSONS AGAINST THEIR OWN NEGLIGENCE.
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject to and limited by in all respects the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 11.6 through 11.8 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (includingbut not to the extent such Claims arise from the (v) failure by an Indemnified Person to comply with applicable state or federal banking Laws or other Laws, (w) acts or omissions that occur after the Notes, Certificates and all other amounts outstanding under or pursuant to the Operative Agreements have been paid in full and the Lessee has either purchased the Properties in accordance with the terms of the Operative Agreements or relinquished its interest in the Properties in accordance with the terms of the Operative Agreements, (x) gross negligence, (y) willful misconduct of such Indemnified Person itself, as determined by a court of competent jurisdiction (as opposed to gross negligence or willful misconduct imputed to such Indemnified Person) or (z) breach of such Indemnified Person's obligations under this Agreement, the Lease or any other Operative Agreement, except any breach by any Indemnified Person caused by any breach by any Credit Party of any obligation of any Credit Party pursuant to the Operative Agreements) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitationlimitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification or any disposition of any Property or any part thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the properties Property, the Lease, the Agency Agreement or business of any Borrowerthe Indemnity Provider (collectively, such items referenced in this Section 11.1(c) may be referred to as the "Environmental Matters"); (d) the Operative Agreements, or any default transaction contemplated thereby; (e) any breach by a Borrower in the performance or observance Indemnity Provider of any representation, warranty, of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or condition agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, in this Agreement respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other Loan Documentsimilar entity for the applicable Property. If a written Claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of such proceeding), for any Claim, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or regulation to be taken prior to the end of such period of thirty (30) days, such Indemnified Person shall endeavor to, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals); provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim with counsel to be selected by the Indemnity Provider after the solicitation and consideration of any advice provided by such Indemnified Person; provided, however, that any Indemnified Person may retain separate counsel at the expense of the Indemnity Provider in the event of a material conflict of interest between such Indemnified Person and the Indemnity Provider) by, in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not apply be required to take any action unless (A) the Indemnity Provider shall have agreed to pay and shall pay to such lossesIndemnified Person on demand and on an After Tax Basis all reasonable costs, claimslosses and expenses that such Indemnified Person actually incurs in connection with such Claim, damagesincluding without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to pay an indemnity under this Section 11.1) exceeds $250,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or liabilities any part thereof or related expenses determined interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is reasonably required to pay upon advice of counsel (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have caused to be provided to such Indemnified Person advice, but not an opinion, of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, advice, but not an opinion, of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, pursuant to the extent contest provisions of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.2211.1, such unless there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall promptly notify Borrowers in writing have received, at the Indemnity Provider's expense, advice, but not an opinion, of independent counsel selected by the commencement Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such litigation change in law (or proceedinginterpretation thereof), but it is more likely than not that the omission so Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to notify Borrowers shall not relieve Borrowers from adjust or settle any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure Claim without the consent of the Indemnified Person to timely notify Borrowers of the commencement of extent any such litigation adjustment or proceeding settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person. In the event that the Indemnity Provider shall not relieve Borrowers of their obligations be required to make any payment under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability 11.1 to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such an Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person agrees to take such reasonable action as is requested by the Indemnity Provider, in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets ofwriting, any such litigation or proceeding include both an Indemnified Person action to be at the risk and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf expense of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory Indemnity Provider, to such Indemnified Person in minimize the exercise consequences of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice After-Tax Basis method of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforindemnity.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to assume any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the defense financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of such litigation any Property or proceeding with counsel any part thereof, including without limitation the acquisition, holding or disposition of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person any interest in the exercise Property, lease or agreement comprising a portion of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interestany thereof; (iib) the defendants in, any latent or targets of, other defects in any such litigation Property or proceeding include both any portion thereof whether or not discoverable by an Indemnified Person and any Borroweror the Indemnity Provider; (c) a violation of Environmental Laws, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from Environmental Claims or additional to those available other loss of or damage to any Borrower property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, in which case Borrowers respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the applicable Property. The Indemnity Provider shall not have be permitted to contest or respond to any Claim subject to this Section 11.1 with the right to direct the defense of such action on behalf prior written consent of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers which consent shall not be liable for unreasonably withheld or delayed. The Indemnity Provider agrees to pay as Supplemental Rent any and all indemnification amounts with respect to which the fees, costs Borrower is otherwise obligated pursuant to Section 2.12 of the Credit Agreement. The Construction Agent and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with Lessee waive and agree not to assert any defense alleging that the same action and Owner Trustee or any separate but substantially similar or related action in Development Authority is the same jurisdiction. Borrowers shall not consent to the entry owner of any judgment Property or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforportion thereof.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any other Person (including, without limitation, relating but not to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that extent such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Claims arise from the gross negligence, willful misconduct or subjective bad faith willful breach of such Indemnified Person) in any way relating to or arising, and if or alleged (by any Person asserting such a Claim against an Indemnified Person) to arise, out of the execution, delivery, performance or enforcement of this Agreement, the Lease, any other Operative Agreement or the Bridge Loan Documents or on or with respect to any Ancillary Property or Property or any part thereof, including, without limitation, Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of an Ancillary Property, a Property, or any part thereof, including the acquisition, holding or disposition of any interest in any Ancillary Property, Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defect in any property whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any Environmental Claim, any violation of Environmental Laws, or any other loss of or damage to any property or the environment relating to any Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby, or the Bridge Loan Documents or any transaction contemplated thereby; (e) any breach by the Construction Agent or the Lessee of any of its representations or warranties under the Operative Agreements to which it is a director, officer, employee, Affiliate party or agent of a Lender failure by the Construction Agent or the AgentLessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, thenin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) any personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; (h) any easement, right, agreement or document referred to in Section 10.5 of this Agreement; or (i) any Lien on any Ancillary Property or any Property (other than Liens created by the extent of such gross negligence, willful misconduct Operative Agreements or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableLessor Liens). If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding) for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that, in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding30-day period, such Indemnified Person shall have endeavor, in such notice to the right Indemnity Provider, to employ separate counsel and to participate in inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure materially precludes the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including, without limitation by pursuit of appeals) (provided, however, that (A) if such Claim can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim, the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim, (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party, except that the Indemnity Provider may not agree to any dismissal or settlement of, or other agreement in connection with, any claim without the prior written consent of such Indemnified Person, if such dismissal, settlement or agreement would require any admission or acknowledgment of any culpability or wrongdoing by such Indemnified Person or provide for any nonmonetary relief to be performed by such Indemnified Person. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 13.1 by way of indemnification or advance for the payment of any amount regarding such Claim other than expenses of the action relating to such Claim. Notwithstanding the foregoing provisions of this Section 13.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and no Indemnity Provider shall be permitted to respond to any separate but substantially similar Claim in its own name or related action in that of the same jurisdiction. Borrowers Indemnified Person unless (A) the Indemnity Provider shall not consent have agreed to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person), (D) in the case of a release from all liability Claim that must be pursued in respect the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim, (E) such claim is covered by insurance and (F) no Event of Default shall have occurred and be continuing. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or litigation. The agreements that of Borrowers in an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 2.22 13.1, unless there shall be have been a change in addition law (or interpretation thereof) and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of independent counsel selected by the Indemnified Person and reasonably acceptable to any liability the Indemnity Provider stating that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten as a result of such change in law (10) days of written demand thereforor interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
Samples: Participation Agreement (Wackenhut Corrections Corp)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction) in any way relating to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate arising or agent of a Lender or the Agent, then, alleged to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing arise out of the commencement execution, delivery, performance or enforcement of such litigation this Agreement, the Lease or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation Operative Agreement or liability which it may have on or with respect to any Indemnified PersonProperty or any component thereof, except that no Borrower waives including without limitation Claims in any rights for damages incurred by it on account way relating to or arising or alleged to arise out of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (ia) the use of counsel chosen financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants insummary proceedings or otherwise), or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry other disposition of any judgment Property or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.part thereof, including without limitation the
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableapplicable Property. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity 44 Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $15,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting The Lessee agrees, whether or not any of the transactions contemplated hereby shall be consummated and whether or not the Facility Lease, any other provision of this Agreement Transaction Document or of any other Loan DocumentFinancing Document shall have expired or have been terminated, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") againstto assume liability for, and the Lessee does hereby agree to hold indemnify, protect, defend, save and keep harmless each such Indemnified Person harmless fromIndemnitee, on an After-Tax Basis, tram and against, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenseswhich may be imposed on, incurred by or asserted against any Indemnitee (whether because of act or omission by such Indemnified Person arising out of any claim, litigation, investigation Indemnitee or proceeding (otherwise and whether or not such Indemnified Person is a party theretoIndemnitee shall also be indemnified as to any such Claim by any other Person) in any way relating to or arising out of (i) Xxxx 0, the Undivided Interest, the Real Property Interest, PVNGS or the PVNGS Site, or any transactionspart of -63- 6091.100.2898.27A:9 any thereof (or any beneficial interest therein) , services any ANPP Project Agreement, the issuance or matters that are payment of the subject Bonds or arise in connection with or as a result of the Notes, this Participation Agreement or the transactions contemplated hereby any other Transaction Document or any Financing Document (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance enforcement of any representationof the obligations and terms hereunder or thereunder), warranty(ii) a disposition of all or any part of the Undivided Interest, covenant or condition in this Agreement the Real Property Interest, Unit 2 or any other Loan Documentinterest of the Owner Trustee or Owner Participant in connection with any termination of the Facility Lease, or (iii) the design, manufacture, financing, erection, purchase, acceptance, rejection, ownership, acquisition, delivery, nondelivery, lease, sublease, preparation, installation, repair, transfer of title, abandonment, possession, use, operation, maintenance, condition, sale, return, storage, disposition, or decommissioning (including, but without limitation, with respect to the Termination Obligation) of the Undivided Interest, Unit 2, the Real Property Interest, any Capital Improvement, the PVNGS Site, any other facilities on the PVNGS Site or any other interest of the Owner Trustee or Owner Participant in any thereof or any accident, nuclear incident or extraordinary nuclear occurrence in connection therewith (including, without limitation, (A) claims or penalties arising from any violation of law or liability in tort (strict or otherwise) or from the active or passive negligence of any Indemnitee, (3) loss of or damage to any property or the environment or death or injury to any Person, (C) latent and other defects, whether or not discoverable, (D) any claim for patent, trademark, service-xxxx or copyright infringement and (E) any claim of any Indemnitee incurred in the administration of this Participation Agreement, any other Transaction Document or any Financing Document and not paid as Transaction Expenses or included in Facility Cost and, if not included in Transaction Expenses, the reasonable fees and disbursements of counsel and other professionals incurred in connection therewith); provided, however, that such indemnity the Lessee shall not apply be required to indemnify any Indemnitee pursuant to this Section 13(a), (1) for any Claim in respect of Xxxx 0, the Undivided Interest or the Real Property Interest arising from acts or events not attributable to the Lessee which occur after redelivery of the Undivided Interest to the Owner Trustee in accordance with Section 5 of the Facility 6091.100.2898.27A:9 Lease, except to the extent expressly provided in any Transaction Document, the ANPP Participation Agreement or any other agreement or undertaking of the Lessee, (2) for any Claim against such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen Indemnitee resulting solely from acts which would constitute the gross negligence, willful misconduct or subjective bad faith gross negligence of such Indemnified PersonIndemnitee (unless imputed to such Indemnitee by reason of Xxxx 0, and if such Indemnified Person is the Undivided Interest, the Real Property Interest, PVNGS, the PVNGS Site or any other facilities at the PVNGS Site or any occurrence in connection with any thereof), (3) for any Transaction Expense to be paid by the Owner Trustee pursuant to Section 14(a) or (4) for any Claim resulting solely from a director, officer, employee, Affiliate or agent of a Lender transfer by the Owner Trustee or the AgentOwner Participant of all or part of its interest in the Facility Lease, thenXxxx 0, the Real Property Interest or the Undivided Interest other than in connection with any early termination of the Facility Lease or any exercise of remedies under Section 16 thereof or the transfer contemplated by Section 7(b) (4) or the first transfer by the Owner Participant to an Affiliate of the Owner Participant. To the extent that an Indemnitee in fact receives indemnification payments from the Lessee under the indemnification provisions of this Section 13(a), the Lessee shall be subrogated, to the extent of such gross negligenceindemnity paid, willful misconduct to such Indemnitee's rights with respect to the transaction or subjective bad faithevent requiring or giving rise to such indemnity, but only so long as such indemnity subrogation shall not apply to materially adversely affect the rights of such Lender Indemnitee or any other Indemnitee hereunder. Nothing herein contained shall be construed as constituting a guaranty by the Lessee of the principal of or premium, if any, or interest on the Notes or the Agent, as applicable. If any litigation Bonds or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation residual value or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure useful life of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforUndivided Interest.
Appears in 1 contract
Samples: Participation Agreement (Public Service Co of New Mexico)
General Indemnity. Without limiting any other provision rights which any such Person may have hereunder or under applicable law, Seller hereby agrees to indemnify each of this Agreement or the Administrator, Purchaser, the Liquidity Banks, the Credit Bank, the Relationship Bank, the Liquidity Agent, each of their respective Affiliates, and all successors, transferees, participants and assigns and all officers, directors, shareholders, controlling persons, employees and agents of any other Loan Document, Borrowers hereby jointly and severally indemnify of the foregoing (each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, an "Indemnified PersonsParty") against), forthwith on demand, from and agree to hold each such Indemnified Person harmless from, against any and all damages, losses, claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, liabilities and related costs and expenses, including reasonable counsel attorneys' fees and expenses, disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by such Indemnified Person any of them arising out of or relating to the Transaction Documents or the ownership or funding of the Asset Interest or in respect of any claimReceivable or Account or any Contract, litigationexcluding, investigation however, (a) Indemnified Amounts to the extent resulting from gross negligence or proceeding (whether or not willful misconduct on the part of any such Indemnified Person Party, (b) recourse (except as otherwise specifically provided in this Agreement) for any Receivable that is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or not paid as a result of credit related issues and (c) any tax based upon or measured by net income. Without limiting the foregoing, Seller shall indemnify each Indemnified Party for Indemnified Amounts arising out of or relating to:
(i) the transfer by Seller of any interest in any Receivable other than the transfer of an Asset Interest to Purchaser pursuant to this Agreement and the grant of a security interest to Purchaser pursuant to Section 9.01;
(ii) any representation or warranty made by Seller or Servicer (or any of its officers) under or in connection with any Transaction Document, any Information Package or any other information or report delivered by or on behalf of Seller pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made;
(iii) the failure by Seller or Servicer to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the transactions contemplated hereby related Account or Contract, or the nonconformity of any Pool Receivable or the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest and maintain vested in Purchaser an undivided percentage ownership interest, to the extent of the Asset Interest, in the Receivables in, or purporting to be in, the Receivables Pool, free and clear of any Lien, other than a Lien arising solely as a result of an act of Purchaser, the Administrator or the Relationship Bank, whether existing at the time of any Purchase or Reinvestment of such Asset Interest or at any time thereafter, unless such failure is the result of the failure of Purchaser to execute any necessary financing statements;
(v) the failure to file, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivables in, or purporting to be in, the Receivables Pool, whether at the time of any Purchase or Reinvestment or at any time thereafter;
(vi) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool (including, without limitation, relating to a defense based on such Receivable's or the properties or business related Contract's not being a legal, valid and binding obligation of any Borrowersuch Obligor enforceable against it in accordance with its terms), or any default by a Borrower other claim resulting from the sale of the merchandise or services related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vii) any failure of Seller or Servicer to perform its duties or obligations in accordance with the performance provisions of Article VIII;
(viii) any products liability claim arising out of or observance in connection with merchandise or services that are the subject of any representationPool Receivable; or
(ix) any tax or governmental fee or charge (but not including taxes upon or measured by net income), warrantyall interest and penalties thereon or with respect thereto, covenant and all out-of- pocket costs and expenses, including the reasonable fees and expenses of counsel in defending against the same, which may arise by reason of the purchase or condition in this Agreement ownership of any Asset Interest, or any other Loan Document); provided, however, that such indemnity shall not apply to interest in the Pool Receivables or in any goods which secure any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforPool Receivables.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Charming Shoppes Inc)
General Indemnity. Without limiting any Subject only to the exceptions set forth in Section 9(b), Lessee hereby assumes liability for and hereby agrees to indemnify Lessor and each other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Party against, and agree agrees to hold protect, save and keep harmless each such Indemnified Person harmless thereof from, any and all claims, damages Expenses of whatsoever kind and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesnature from time to time imposed on, incurred by such or asserted against any Indemnified Person Party in any way relating to or arising out of.
(i) the Operative Documents, any of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby thereby or the enforcement of any of the terms thereof, including, without limitation, the enforcement of this Section 9;
(ii) the Aircraft, the Airframe, any Engine or engine or Part or any other thing delivered under this Agreement;
(iii) the acceptance, delivery, lease, sublease, charter, subcharter, registration, deregistration, reregistration, possession, repossession, use, presence, operation, condition, storage (unless otherwise expressly provided herein), installation, testing, modification, alteration, maintenance, repair, release, return, transportation, transfer, exportation, importation, abandonment or other disposition of the Aircraft, the Airframe, any Engine or engine or Part or any other thing delivered under this Agreement (including, without limitation, relating to the properties any claim for patent, trademark or business copyright infringement in respect of any BorrowerPart of the Aircraft which was not delivered to Lessee hereunder, any liability for any injury to or [Lease Agreement] death of any Person or loss of or damage to any property, latent or other defects, whether or not discoverable and whether or not any of the foregoing shall arise as a result of the action or inaction of Lessee or any default other Person); and
(iv) any breach or noncompliance by a Borrower in the performance Lessee with any covenant, term, agreement, condition, undertaking or observance of any representation, warranty, covenant or condition in obligation under this Agreement or under any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damagesOperative Document or agreement entered into or furnished by Lessee in connection herewith or therewith, or liabilities the falsity or related expenses determined by a court inaccuracy of competent jurisdiction to have arisen from the gross negligenceany representation or warranty of Lessee set forth herein or therein, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent occurrence of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified PersonDefault, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22including, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets ofwithout limitation, any such litigation Expenses incurred, assumed or proceeding include both an suffered by Lessor or any other Indemnified Person and Party as a consequence of Lessee's failure to Return the Aircraft in accordance with this Agreement on any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from date specified or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforrequired herein.
Appears in 1 contract
Samples: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
General Indemnity. Without limiting Borrower agrees to indemnify and hold ----------------- harmless Lender and its Affiliates and their partners, officers, directors, employees, agents, attorneys and advisors (each, an "Indemnified Party") from ----------------- and against any other provision and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with (i) this Agreement or of any other Loan Document, Borrowers the actual or proposed use of the proceeds hereunder or any of the transactions contemplated hereby jointly or by the other Loan Documents, or (ii) the Merger and severally indemnify each any of the other transactions contemplated hereby, in either case whether or not such investigation, litigation or proceeding is brought by Borrower, its directors, shareholders or creditors or an Indemnified Party or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. Borrower also agrees not to assert any claim against Lender, the Agent and any of its affiliates, or any of their respective directors, officers, employees, Affiliates attorneys and agents (collectivelyagents, "Indemnified Persons") againston any theory of liability, and agree to hold each such Indemnified Person harmless fromfor special, any and all claimsindirect, consequential or punitive damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) otherwise relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties herein or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender Document or the Agent, then, to the extent of such gross negligence, willful misconduct actual or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing proposed use of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure proceeds of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforLoan.
Appears in 1 contract
General Indemnity. Without limiting any other provision In addition to and without limitation of this Agreement or the indemnity set forth in SECTION 11.1 and in addition to the payment of any other Loan Documentexpenses pursuant to SECTION 13.1, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, Borrower hereby indemnifies, exonerates and holds each Indemnified Party free and harmless from and against any and all actions, causes of action, suits, costs, liabilities, losses, damages, injuries, expenses and claims of any and every kind whatsoever (including, without limitation, court costs and Attorneys' Fees and disbursements of counsel for any Indemnified Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any of such Indemnified Parties shall be designated a party thereto) that may be imposed on, incurred by, or asserted against any Indemnified Party, in any manner relating to the properties or business arising out of (a) this Agreement, any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement other Loan Document or any other agreements executed and delivered by Borrower, any Subsidiary of Borrower or any other Obligor in connection herewith, the statements contained in any commitment letter delivered by any Lender, any Lender's agreement to make Credit Extensions hereunder, the use or intended use of any Letters of Credit, or the use or intended use of the proceeds of any of the Loans, (b) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Loan Documentor Letter of Credit, (c) the entering into and performance of this Agreement and any other Loan Document by any of the Indemnified Parties (including any action brought by or on behalf of the Borrower, any Subsidiary of Borrower or any other Obligor as the result of any determination by a Lender pursuant to ARTICLE X not to fund any Credit Extension) or (d) any investigation, litigation or proceeding related to any acquisition or proposed acquisition by the Borrower, any other Obligor or any of the Borrower's Subsidiaries of all or any portion of the stock or assets of any Person, whether or not any Lender is party thereto (collectively, the "Indemnified Liabilities"); provided, however, provided that such indemnity the Borrower shall not apply have no obligation to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction an Indemnified Party hereunder with respect to have arisen Indemnified Liabilities arising from the gross negligence, bad faith or willful misconduct or subjective bad faith of such Indemnified PersonParty. To the extent that the undertaking to indemnify, pay and if such Indemnified Person hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Borrower shall contribute the maximum portion that it is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, permitted to pay under applicable law to the extent payment and satisfaction of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any all Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages Liabilities incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers Parties or any of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforthem.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether Whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (including, without limitation, relating but not to the properties extent such Claims arise from the gross negligence or business willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction or pursuant to have arisen from the arbitration as set forth in Section 12.8, as opposed to gross negligence, negligence or willful misconduct imputed to such Indemnified Person with regard to the acts or subjective bad faith omissions of any Person which is not an agent or employee of such Indemnified Person; provided, and if such no Indemnified Person shall be responsible for the acts or omissions of the Construction Agent regardless of any agency status) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent absolute liability in tort. Without limiting the generality of a Lender the foregoing, Environmental Claims shall include without limitation amounts paid in settlement of claims, all consultant and expert fees and expenses of any Indemnified Person incurred in connection with any investigation of site conditions, any abatement, cleanup, remediation, removal or the Agentrestoration work, thenor liability for any damages or injuries of any Person or to land, to the extent of such gross negligenceair, willful misconduct water or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableother natural resources. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and no Indemnity Provider shall be permitted to respond to any separate but substantially similar Claim in its own name or related action in that of the same jurisdiction. Borrowers Indemnified Person unless (A) the Indemnity Provider shall not consent have agreed to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal will more likely than not prevail) and (F) no Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not 44 be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnified Person and reasonably acceptable to the Indemnity Provider stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
General Indemnity. Without limiting In addition to Imperial PFC’s other Obligations under this Agreement, Imperial PFC agrees to defend, protect, indemnify and hold harmless Lexington and all of its respective officers, directors, employees, attorneys, consultants and agents (collectively called the “Indemnitees”) from and against any and all losses, damages, liabilities, obligations, penalties, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) incurred by such Indemnitees, whether prior to or from and after the Effective Date, whether direct, indirect or consequential, as a result of or arising from or relating to or in connection with any of the following: (i) the negotiation, preparation, execution or performance or enforcement of this Agreement, any other provision of this Agreement applicable Settlement Document or of any other Loan Documentdocument executed in connection with the transactions contemplated by this Agreement, Borrowers hereby jointly and severally indemnify each Lender, (ii) any matter relating to the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought transactions contemplated by this Agreement or the other Settlement Documents or by any shareholder document executed in connection with [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. the transactions contemplated by this Agreement or former shareholder of any Borrowerthe other Settlement Documents, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of (iii) any claim, litigation, investigation or proceeding (relating to any of the foregoing, whether or not such Indemnified Person any Indemnitee is a party thereto, (iv) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business breach by Imperial PFC of any Borrower, of its covenants or agreements or any default failure by a Borrower in the performance or observance Imperial PFC to perform any of any representation, warranty, covenant or condition its obligations set forth in this Agreement or in any other Loan Documentof the Settlement Documents or (v) any breach of any warranty or the inaccuracy of any representation of Imperial PFC contained or referred to in this Agreement (collectively, the “Indemnified Matters”); provided, however, that such indemnity Imperial PFC shall not apply have any obligation to any Indemnitee under this subsection (a) for any Indemnified Matter caused by the gross negligence or willful misconduct of such lossesIndemnitee, claims, damages, or liabilities or related expenses as determined by a final judgment of a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.
Appears in 1 contract
Samples: Omnibus Claims Settlement Agreement (Imperial Holdings, LLC)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers The Owner hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilitiesdisbursements, including claims brought by any shareholder or former shareholder of any Borrower, whatsoever kind and related expenses, including reasonable counsel fees and expensesnature (collectively called "EXPENSES") imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any lease or sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Liquidity Provider, the Intercreditor Agreement and the Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement or (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the properties meaning of Section 15 of the Securities Act of 1933, as amended); PROVIDED that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or business arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement or the Pass Through Trust Agreements or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this any of the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities, the Policy Provider Agreement or the Pass Through Trust Agreements applicable to it including, without limitation, the creation or existence of a Loan Participant Lien or an Indenture Trustee's Lien (except to the extent such failure was caused directly by the failure of the Owner to perform any other Loan obligation under an Owner Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified PersonIndemnitee (or any member of the Related Indemnitee Group) (other than gross negligence imputed to such Indemnitee (or any member of the Related Indemnitee Group) solely by reason of its interest in the Aircraft), and if or (D) with respect to any Indemnitee, a disposition (voluntary or involuntary) by such Indemnified Person is a director, officer, employee, Affiliate Indemnitee of all or agent of a Lender or the Agent, then, to the extent any part of such gross negligenceIndemnitee's interest in the Airframe, willful misconduct any Engine or subjective bad faithin the Operative Documents other than during the continuance of an Event of Default under the Trust Indenture, or (E) any Tax whether or not the Owner is required to indemnify for such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers Tax pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which 7(b) hereof (it may have to any Indemnified Person, except being understood that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i7(b) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable hereof provides for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.Owner's
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
General Indemnity. Without limiting Subject to Sections 11.2 (regarding indemnification matters concerning Impositions) and 11.6, whether or not any of the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party (including any other provision Indemnified Person), including Claims arising from the negligence of this Agreement or of any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from(but, in each case, not to the extent (1) such Claims arise from the gross negligence or willful misconduct of such Indemnified Person itself, as determined by a court of competent jurisdiction in a final nonappealable judgment, as opposed to gross negligence or willful misconduct imputed to such Indemnified Person; (2) disputes solely between or among Indemnified Persons and not relating to or in connection with acts or omissions by the Lessee or any and all claims, damages and liabilities, including claims other Credit Party; (3) such Claims result from a claim brought by any shareholder or former shareholder Credit Party against an Indemnified Person for breach in bad faith of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out Person’s obligations hereunder or under any other Operative Agreement, if such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of any claimcompetent jurisdiction; (4) the Indemnity Provider was not given notice of the subject claim and the opportunity to participate in the defense thereof, litigationat its expense (except that each Credit Party shall remain liable to the extent such failure to give notice does not result in a loss of such Credit Party); or (5) the same results from a compromise or settlement agreement entered into without the consent of the Indemnity Provider, investigation or proceeding (which shall not be unreasonably withheld), whether or not such Indemnified Person shall also be indemnified as to any such Claim by any other Person and whether or not such Claim is initiated after the Termination Date, so long as such Claim arises out of an act or omission (or other circumstance or condition of any kind or description) which arose or occurred prior to the Termination Date, in any way relating to or arising or alleged to relate to, or arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease, the Agency Agreement or any other Operative Agreement or on or with respect to the Property or any component thereof, including Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of the Property or any part thereof, including the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in the Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any violation or alleged violation of law or in tort (strict liability or otherwise); (d) any Claim based upon a violation or alleged violation of the terms of any restriction, easement, condition or covenant or other matter affecting title to the Property; (e) any violation of or noncompliance with (or alleged violation or noncompliance with) any Environmental Laws, any Environmental Claims or any loss of or damage to any property or the environment relating to the Property, the Lease or the Indemnity Provider; (f) the Operative Agreements, or any transaction contemplated thereby (including the formation, continuance, operation and ultimate dissolution and liquidation of the Lessor) or any amendment, modification or waiver thereof or the exercise of remedies under any Operative Agreement following the occurrence and continuance of any Event of Default; (g) any breach by the Indemnity Provider, the Construction Agent or any Guarantor of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider, the Construction Agent or any Guarantor is a party theretoor failure by the Indemnity Provider, the Construction Agent or any Guarantor to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (h) relating the making of any Modifications in violation of the Operative Agreements or any standards imposed by any insurance policies required to be maintained by the Lessee pursuant to the Lease which are in effect at any transactionstime with respect to the Property or any part thereof; (i) any Claim for patent, services trademark or matters that are copyright infringement; (j) the subject transactions contemplated hereby or arise by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (k) personal injury, death or property damage, including Claims based on strict or absolute liability in tort; (l) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Property; (m) the retaining or employment of any broker, finder or financial advisor by any Credit Party to act on its behalf in connection with or as a result of this Agreement or the transactions contemplated hereby other Operative Agreements; (including, without limitation, relating n) Claims arising from any public improvements with respect to the properties Property resulting in any change or business of special assessments being levied against the Property or any Borrowerplans to widen, modify or realign any street or highway adjacent to the Property, or any default Claim for utility “tap‑in” fees; (o) except in all cases for the existence of Lessor Liens and Liens created under the Operative Agreements in favor of any Financing Party, the existence of any Lien on or with respect to the Property, the Improvements or any Equipment relating thereto, title thereto, any interest therein or on any Basic Rent or Supplemental Rent, including any Liens which arise out of the possession, use, occupancy, construction, repair or rebuilding of the Property or by reason of labor or materials furnished or claimed to have been furnished to the Lessee or the Lessor or any predecessor in title, or any of its contractors or agents or by reason of the financing of any personalty or equipment purchased or leased by the Lessee or the Lessor or any predecessor in title or Modifications constructed by the Lessee. If a Borrower written Claim is made against any Indemnified Person or if any proceeding shall be commenced against such Indemnified Person (including a written notice of such proceeding), for any Claim, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the Indemnity Provider for thirty (30) days after the receipt of such notice by the Indemnity Provider; provided, however, that in the performance or observance case of any representationsuch Claim, warrantyif action shall be required by law or regulation to be taken prior to the end of such period of thirty (30) days, covenant or condition such Indemnified Person shall endeavor to, in such notice to the Indemnity Provider, inform the Indemnity Provider of such shorter period, and no action shall be taken with respect to such Claim without the consent of the Indemnity Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such Indemnified Person to give the notices referred to in this Agreement sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such failure precludes in any material respect the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including by pursuit of appeals) by, in the sole discretion of the Person conducting and controlling such action (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time (provided, however, that (A) if such Claim, in the Indemnity Provider’s reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and control the response to such Claim unless such Claim cannot be pursued independently from any other Loan Documentclaim involving such Indemnified Person or unless such Claim is unrelated to the Property or the transactions contemplated by the Operative Agreements and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may require the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld); provided, however, that any Indemnified Person may retain separate counsel at the expense of the Indemnity Provider if, in the written opinion of counsel to the Indemnified Person reasonably acceptable to the Indemnity Provider (the expense of which opinion shall be paid by the Indemnity Provider), use of counsel of the Indemnity Provider’s choice would be expected to give rise to a conflict of interest between such Indemnified Person and the Indemnity Provider). The party controlling the response to any Claim shall consult in good faith with the non‑controlling party and shall keep the non‑controlling party reasonably informed as to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim (not including the expenses of the contest). Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not apply be required to take any action and the Indemnity Provider shall not be permitted to respond to any Claim in its own name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed in writing to pay and shall pay to such lossesIndemnified Person on demand and on an After Tax Basis all reasonable costs, claimslosses and expenses that such Indemnified Person actually incurs in connection with such Claim, damagesincluding all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed in writing to indemnify such Indemnified Person in respect of the Claim if and to the extent the contest is not successful, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or liabilities any part thereof or related expenses determined interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability or civil penalty or risk of sale, forfeiture or loss of or the creation of any Lien (other than a Permitted Lien) on the Property, (C) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest‑free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after‑Tax cost to such Indemnified Person) prior to the date such payment is due, (D) in the case of an appeal of an adverse determination respecting a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to pursue such an appeal, and (E) no Default or Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, pursuant to the extent contest provisions of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.2211.1, such unless there shall have been a change in Law (or interpretation thereof) and the Indemnified Person shall promptly notify Borrowers in writing have received, at the Indemnity Provider’s expense, an opinion of independent counsel selected by the commencement Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such litigation change in Law (or proceedinginterpretation thereof), but it is more likely than not that the omission so Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to notify Borrowers shall not relieve Borrowers from adjust or settle any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure Claim without the consent of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case extent any such litigation adjustment or proceeding shall be brought against settlement involves, or is reasonably likely to involve, any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation performance by or proceeding, Borrowers shall be entitled to participate in such litigation adverse admission by or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory respect to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.
Appears in 1 contract
Samples: Operative Agreements (Big Lots Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers The Owner hereby jointly and severally agrees to indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, defend, save and keep harmless each such Indemnified Person harmless fromthereof from (whether or not the transactions contemplated herein or in any of the other Operative Documents are consummated), any and all liabilities, obligations, losses, damages, penalties, claims, damages actions, suits, out-of-pocket costs, expenses and liabilitiesdisbursements, including claims brought by any shareholder or former shareholder of any Borrower, whatsoever kind and related expenses, including reasonable counsel fees and expensesnature (collectively called "Expenses") imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) any claimof the Operative Documents or any lease or sublease of the Aircraft or the enforcement of any of the terms thereof or any amendment, litigationmodification or waiver in respect thereof and, investigation only in the case of the Indemnitee who is the Subordination Agent or proceeding the Liquidity Provider, the Intercreditor Agreement and the Liquidity Facilities, (B) the manufacture, purchase, acceptance or rejection of the Airframe or any Engine, (C) the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) whether or not such Indemnified Person is a party theretoarising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, sublease, sub-sublease, possession, use, non-use, operation, maintenance, registration, reregistration, condition, modification, alteration, replacement, repair, substitution, sale, return or other disposition of the Aircraft (or any portion thereof or any Engine or engine affixed to the Airframe) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement or (D) the offer, sale or delivery of the Secured Certificates (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee within the properties meaning of Section 15 of the Securities Act of 1933, as amended); provided that the foregoing indemnity as to any Indemnitee shall not extend to any Expense resulting from or business arising out of or which would not have occurred but for one or more of the following: (A) any Borrowerrepresentation or warranty by such Indemnitee (or any member of the Related Indemnitee Group) in the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities or any Pass Through Trust Agreement or in connection therewith being incorrect in any material respect, or (B) the failure by such Indemnitee (or any default by a Borrower in member of the performance Related Indemnitee Group) to perform or observance of observe any representation, warrantyagreement, covenant or condition in this Agreement any of the Operative Documents, the Intercreditor Agreement, the Liquidity Facilities or any other Pass Through Trust Agreement applicable to it including, without limitation, the creation or existence of a Loan Participant Lien or an Indenture Trustee's Lien (except to the extent such failure was caused directly by the failure of the Owner to perform any obligation under an Owner Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from (C) the gross negligence, willful misconduct or subjective bad faith the gross negligence of such Indemnified PersonIndemnitee (or any member of the Related Indemnitee Group) (other than gross negligence imputed to such Indemnitee (or any member of the Related Indemnitee Group) solely by reason of its interest in the Aircraft), and if or (D) with respect to any Indemnitee, a disposition (voluntary or involuntary) by such Indemnified Person Indemnitee of all or any part of such Indemnitee' s interest in the Airframe, any Engine or in the Operative Documents other than during the continuance of an Event of Default under the Trust Indenture, or (E) any Tax whether or not the Owner is required to indemnify for such Tax pursuant to Section 7(b) hereof (it being understood that Section 7(b) hereof provides for the Owner's liability with respect to Taxes), or (F) in the case of an Indemnitee which is a directorLoan Participant, officer, employee, Affiliate or agent of a Lender Certificate Holder or the AgentIndenture Trustee (in its individual or trust capacity) and the affiliates, thensuccessors and assigns thereof, to a failure on the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing part of the commencement Indenture Trustee to use ordinary care to distribute in accordance with the Trust Indenture any amounts received and distributable by it thereunder, or (G) the authorization or giving or withholding of such litigation any future amendments, supplements, waivers or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have consents with respect to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers Operative Documents, the Intercreditor Agreement, any of the commencement of Liquidity Facilities or any Pass Through Trust Agreement other than such litigation as have been consented to, approved, authorized or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen requested by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.the
Appears in 1 contract
Samples: Participation Agreement (Northwest Airlines Inc /Mn)
General Indemnity. Without limiting any other provision Subject to and limited by in all respects the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 11.6 through 11.8 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims (provided however that, other than for purposes of Section 11.2(f), any Claim relating to Taxes shall be governed solely by Section 11.2), which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (but not to the extent such Claims (i) are attributable to acts or events occurring after the Expiration Date or, with respect to any individual Property, after retention by the Lessor of such Property or the sale of such Property to a third party, in each case pursuant to the Lease (including, without limitation, relating to Articles XX and XXII of the properties Lease) or business (ii) arise from the gross negligence or willful misconduct of any Borrowersuch Indemnified Person itself, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses as determined by a court of competent jurisdiction jurisdiction, as opposed to have arisen from the gross negligence, negligence or willful misconduct or subjective bad faith of imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution, and if such delivery, performance or enforcement of this Agreement, the Lease or any other Operative Agreement or on or with respect to any Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other disposition of any Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative 45 51 Agreements to which the Indemnity Provider is a directorparty or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) personal injury, officerdeath or property damage, employeeincluding without limitation Claims based on strict or absolute liability in tort; and (g) any fees, Affiliate expenses and/or other assessments by any business park or agent of a Lender or any other applicable entity with oversight responsibility for the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableapplicable Property. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure materially prejudices the Indemnity Provider from contesting such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the Indemnity Provider)) by, in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that all decisions ultimately shall be made in the discretion of the controlling party and provided further that, if an Indemnified Person is the controlling party and the Indemnity Provider recommends the acceptance of a solely monetary settlement offer with respect to such Claim that Borrowers does not contain any stipulation or admission objectionable to such Indemnified Person, and such Indemnified Person rejects such settlement offer, then the amount for which an Indemnity Provider will be required to indemnify such Indemnified Person with respect to such Claim shall not exceed the amount which the Indemnity Provider would have owed had such offer been accepted. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the payment of an amount regarding such Claim. Each Indemnified Person shall supply the Indemnity Provider with such information and documents reasonably requested by the Indemnity Provider as are necessary or advisable for such Indemnity Provider to contest or prosecute any Claim, provided, however, that such Indemnified Person shall not be liable for required to provide the fees, costs and expenses Indemnity Provider with copies of more than one separate counsel at the same time for all such Indemnified Persons in connection with Person's tax returns or any other information or documents that such Indemnified Person reasonable deems to be confidential or proprietary. Notwithstanding the same foregoing provisions of this Section 11.1, an Indemnified Person shall not be required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be payable within ten taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (10D) days if such Claim shall involve the payment of written demand therefor.any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse
Appears in 1 contract
Samples: Participation Agreement (Shurgard Storage Centers Inc)
General Indemnity. Without limiting The Lessee, whether or not any of the ----------------- transactions contemplated hereby shall be consummated, hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims or threatened Claims which may be imposed on, incurred by or asserted against an Indemnified Person in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, trusteeship, design, manufacture, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any other provision disposition of this Agreement the Equipment, or any part thereof; (b) any latent or other defects in the Equipment whether or not discoverable by an Indemnified Person or the Lessee; (c) a violation of Environmental Laws, Environmental Claims or other loss of or damage relating to the Equipment; (d) the Transaction Documents or any transaction contemplated thereby; (e) any breach by the Lessee of any other Loan Documentof its representations or warranties under the Transaction Documents or failure by the Lessee to perform or observe any covenant or agreement to be performed by it under any of the Transaction Documents; and (f) personal injury, Borrowers hereby jointly and severally indemnify each Lenderdeath or property damage relating to the Equipment, including Claims based on strict liability in tort; provided that the Agent and their respective directorsforegoing indemnities in clauses (a) -------- through (f) shall not, officersas to any Indemnified Person, employees, Affiliates and agents apply to Claims to the extent they arise out of or result from (collectively, "Indemnified Persons"i) against, and agree to hold each the gross negligence or willful misconduct of such Indemnified Person harmless fromor any successor, any and all claimsassign, damages and liabilitiesdirector, including claims brought by any shareholder shareholder, partner, officer, employee, agent or former shareholder Affiliate of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claimas determined in a final, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligencejurisdiction, willful misconduct (ii) any breach of any obligation or subjective bad faith representation or warranty of such Indemnified PersonPerson under any Transaction Document, (iii) any Taxes including any Claim (or any portion of a Claim) made upon an Indemnified Person by a third party that at its origin is based upon a Tax (other than amounts necessary to make any payments hereunder on an After Tax Basis, where the Lessee is otherwise specifically required to make such payments on an After Tax Basis), (iv) acts or omissions in connection with the ownership, manufacture, operation or maintenance of the Equipment occurring on or after the date the Lessee transfers possession of the Equipment to the Lessor or any third party upon the exercise of remedies pursuant to the Lease and if the Security Documents, except to the extent such Claims are attributable to events that occurred prior to such transfer (the Lessor agrees to indemnify the Trust Company for any Claim which would be indemnifiable by the Lessee but for the provisions of this clause (iv)), or (v) the imposition of any Lessor Lien for which such Indemnified Person is a directorresponsible for discharging under the Transaction Documents. No Indemnified Person shall settle, officercompromise or otherwise pay or agree to pay any claim, employeedamage, Affiliate loss, liability or agent expense for which the Lessee is required to provide indemnification hereunder without the prior consent of a Lender or the AgentLessee, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity which consent shall not apply to such Lender be unreasonably delayed or the Agent, as applicablewithheld. If any litigation claim, action or proceeding for which indemnification by the Lessee may be sought under a Transaction Document is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22Person, such Indemnified Person shall promptly notify Borrowers in writing the Lessee of the commencement institution of such litigation or proceedingclaim, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation action or proceeding and the Lessee shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to thereupon participate in such litigation or proceeding andall respects in the defense thereof and have the right, after written notice from Borrowers at its sole option, to such Indemnified Person, elect to assume the defense of such litigation claim, action or proceeding with proceeding, including the employment of counsel (reasonably satisfactory at all times to such Indemnified Person) and payment of its choice at its expense, provided that such counsel is satisfactory to expenses. Once the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume Lessee has assumed the defense of any such litigation claim, action or proceeding, the Lessee shall no longer be liable to any such Indemnified Person for any expenses subsequently incurred thereby in connection with such claim, action or proceeding unless specifically provided for in the next succeeding sentence. Such Indemnified Person shall have the right to employ separate its or their own counsel in any such case, but the fees and to participate expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the employment of such counsel shall have been authorized in writing by the Lessee in connection with the defense of such litigation Claim or proceeding, and Borrowers shall bear the reasonable fees, costs such fees and expenses relate to the initial examination of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; Claim, (ii) the defendants in, or targets of, any parties against which such litigation or proceeding Claim is brought include both an such Indemnified Person and any Borrower, the Lessee and such Indemnified Person shall have reasonably concluded concludes (based upon the advice of counsel) that there may be are legal defenses available to it which are different from or additional in addition to those available to the Lessee and that such different or additional defenses conflict therewith (it being understood, however, that the Lessee shall not, in connection with any Borrower one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to one firm of attorneys acting as local counsel) for all Indemnified Persons, and such firm shall be designated in writing by the Indemnified Persons) or (iii) any such Claim is brought by the Lessee or for its benefit, in which case Borrowers the reasonable fees and expenses of such counsel shall be borne by the Lessee and the Lessee shall not have the right to direct the defense of such action Claim on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in (but it shall retain the exercise of right to direct the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution defense of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowersclaim, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.on its own
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document, Borrowers (a) The Borrower hereby jointly and severally agrees to indemnify on an After-Tax Basis each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to protect, save and hold harmless each such Indemnified Person harmless from, of them from any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesExpenses imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of any claim, litigation, investigation or proceeding which would not have occurred but for (whether or not such Indemnified Person is a party thereto1) relating to any transactions, services or matters that are the subject or arise in connection with or as a result Borrower Loan Documents and the consummation of this Agreement or the transactions contemplated hereby thereby or any Default or Event of Default thereunder and the enforcement of any of the terms thereof; (including, without limitation, 2)[intentionally left blank]; PROVIDED that the foregoing indemnity of an Indemnitee shall only apply for claims relating to Lender in its capacity as lender under the properties Borrower Loan Documents and not to Lender in its capacity, if any, as manufacturer, repairer, supplier or business of any Borroweraircraft servicing agent, or any default Expense to the extent resulting from or arising out of or which would not have occurred but for one or more of the following: (A) any express representation or warranty by a Borrower such Indemnitee 20 in the performance Borrower Loan Documents being incorrect; or observance of (B) the failure by such Indemnitee to perform or observe any representation, warrantyexpress agreement, covenant or condition in any of the Borrower Loan Documents except to the extent such failure by such Indemnitee proximately results from any failure by the Borrower to observe any covenant, agreement or condition applicable to the Borrower in any Borrower Loan Document; or (C) the willful misconduct or the gross negligence of or violation of law by such Indemnitee (other than any of the foregoing imputed to such Indemnitee solely by reason of its interest in the Aircraft or being party to the Borrower Loan Documents); or (D) a disposition (voluntary or involuntary) of all or any part of its interest in any Note or in any of the Borrower Loan Documents other than, in each case, during the continuance of a Specified Default or an Event of Default under this Junior Loan Agreement or (E) any other Loan Document); providedTax, howeveror any loss of Tax benefits or increase in Tax liability under any Tax law, PROVIDED, HOWEVER, that such indemnity this CLAUSE (E) shall not apply to any obligation of the Borrower under Section 2.b or to Taxes arising from making any payment pursuant to this SECTION 9.12 on an After-Tax Basis; or (F) the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any of the Borrower Loan Documents which amendments, supplements, waivers or consents (x) are not or were not requested by the Borrower, (y) are not occasioned by a specific requirement of the Borrower Loan Documents and (z) are not entered into pursuant to a Default or an Event of Default; or (H) except to the extent resulting from a breach of the Borrower representations contained in SECTION 3.2, the offer, sale or delivery by such lossesIndemnitee in violation of the Securities Act or a violation by such Indemnitee of any other applicable law or regulation relating to the transfer of any Note, or (I) except to the extent caused by acts or events occurring prior thereto, acts or events which occur after the earlier of: (x) the payment by the Borrower of all amounts required to be paid under the Borrower Loan Documents following a Total Loss and termination of the Loan; or (y) termination of the Loan and payment by the Borrower of all amounts required to be paid by Borrower pursuant to the terms of the Borrower Loan Documents.
(b) If a claim is made against an Indemnitee involving one or more Expenses and such Indemnitee has notice thereof, such Indemnitee shall promptly after receiving such notice give notice of such claim to the Borrower; provided, that the failure to provide such notice shall not diminish any of the Borrower's obligations to indemnify hereunder except to the extent the Borrower's right to contest the imposition of such Expense shall be prejudiced or to the extent such failure otherwise adversely affects the Borrower. The Borrower shall be entitled, at its cost and expense (and acting through counsel reasonably acceptable to the respective Indemnitee) (1) in any judicial or administrative proceeding that involves solely a claim for one or more Expenses, to assume responsibility for and control thereof, (2) in any judicial or administrative proceeding involving a claim for one or more Expenses and other claims related or unrelated to the transactions contemplated by the Borrower Loan Documents, to assume responsibility for and control of such claim for Expenses to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its best efforts to obtain such severance), and (3) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee and to be allowed, at the Borrower's sole expense, to participate therein. Notwithstanding any of the foregoing to the contrary, the Borrower shall not be entitled to assume responsibility for and control of any such judicial or administrative proceedings if (A) any Specified Default or Event of Default shall have occurred and be continuing, (B) such 21 proceedings will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Lien permitted under the Borrower Loan Documents) on, the Aircraft or any material part thereof unless in such an event the Borrower shall have posted a bond or other security reasonably satisfactory to the relevant Indemnitees in respect to such risk or (C) such proceedings are reasonably likely to involve the imposition of criminal liability, or material civil penalty for which such Indemnitee is not indemnified hereunder, on an Indemnitee; PROVIDED, HOWEVER, no such proceeding shall be compromised or settled on a basis that admits gross negligence or misconduct on the part of such Indemnitee without such Indemnitee's prior written consent. The Indemnitee may participate at its own expense and with its own counsel in any judicial proceeding controlled by the Borrower pursuant to the preceding provisions so long as such participation shall not materially interfere with the Borrower's conduct or the defense of any such proceeding.
(c) The Indemnitee shall cooperate in good faith with the Borrower and, at the Borrower's expense, shall supply the Borrower with such information reasonably requested by the Borrower as is necessary or advisable for the Borrower to control or participate in any proceeding to the extent permitted by this SECTION 9.12. Such Indemnitee shall not (unless such Indemnitee waives its right to be indemnified with respect to such Expense under this SECTION 9.12) enter into a settlement or other compromise with respect to any Expense without the prior written consent of the Borrower (except during the continuance of an Event of Default when such consent shall not be required if the Indemnitee has given the Borrower at least 15 days prior written notice of the nature and scope of the proposed settlement or compromise), which consent shall not be unreasonably withheld, conditioned or delayed.
(d) The Borrower shall supply the Indemnitee with such information (which may, in the case of confidential or proprietary information be supplied subject to a reasonable confidentiality requirement) reasonably requested by the Indemnitee as is necessary or advisable for the Indemnitee to control or participate in any proceeding to the extent permitted by this SECTION 9.12.
(e) So long as no Specified Default or Event of Default under this Junior Loan Agreement shall have occurred and be continuing, upon payment of any Expense pursuant to this SECTION 9.12, the Borrower, without any further action, shall be subrogated to, and may pursue, any claims the Indemnitee may have relating thereto other than claims against any Brazilian government entity. Each Indemnitee hereby agrees to give, at the Borrower's expense, such further assurances or agreements and to cooperate with the Borrower to permit the Borrower to pursue such claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, thenany, to the extent reasonably requested by the Borrower.
(f) The Borrower's obligations under the indemnities provided for in this Agreement shall be those of such gross negligencea primary obligor, willful misconduct whether or subjective bad faithnot the Person indemnified shall also be indemnified with respect to the same matter under the terms of any other document or instrument, such and the Person seeking indemnification from the Borrower pursuant to any provision of this Agreement may proceed directly against the Borrower without first seeking to enforce any other right of indemnification.
(g) To the extent permitted by applicable law, interest at the Debt Rate plus the Default Rate shall be paid, on demand, on any amount or indemnity not paid when due pursuant to this SECTION 9.12 until the same shall not apply to such Lender or be paid. Such interest shall be paid in the Agent, same manner as applicable. If any litigation or proceeding is brought against any Indemnified Person the unpaid amount in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel interest is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefordue.
Appears in 1 contract
Samples: Junior Loan Agreement (Republic Airways Holdings Inc)
General Indemnity. Without limiting Whether or not any of the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any third party, including without limitation Claims arising from the negligence of an Indemnified Person (but not to the extent such Claims arise from the gross negligence or willful misconduct of such Indemnified Person, as determined by a court of competent jurisdiction) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or enforcement of this Agreement, the Lease or any other provision Operative Agreement or on or with respect to the Property or any component thereof, including without limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any disposition of the Property or any part thereof, including without limitation the acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of any thereof; (b) any latent or other defects in the Property or any portion thereof whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) a violation of, or penalties arising from any violation of, Environmental Laws, Environmental Claims or other loss of or damage to any property or the environment, including any Claim relating to the Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of its representations or warranties under the Operative Agreements to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) personal injury, death or property damage, including without limitation Claims based on strict or absolute liability in tort; (h) any Claim for patent, trademark or copyright infringement; and (i) any fees, expenses and/or other assessments by any business park or any other applicable entity with oversight responsibility for the Property; provided, however, that the Indemnity Provider -------- ------- shall not be required to indemnify any Indemnified Person under this Agreement or any of the other Operative Agreements for any other Loan Document, Borrowers hereby jointly and severally indemnify each Lender, of the Agent and their respective directors, officers, employees, Affiliates and agents following:
(collectively, "Indemnified Persons"i) against, and agree to hold each such any Claim by the Lessor resulting from Lessor Liens which any Indemnified Person harmless from, is responsible for discharging under the Operative Agreements; (ii) any and all claims, damages and liabilities, including claims brought Claim by any shareholder an Indemnified Person arising from a breach or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred alleged breach by such Indemnified Person arising out of any claim, litigation, investigation agreement entered into in connection with the assignment or proceeding (whether or not participation by such Indemnified Person is of any Note or any interest therein; (iii) a party theretoClaim by an Indemnified Person arising from the offer, sale or delivery by such Indemnified Person of the Notes or an interest related thereto not attributable to acts or omissions of an Indemnity Provider; (iv) relating a Claim by an Indemnified Person resulting from a violation of any Legal Requirement by such Indemnified Person, (v) except to the extent indemnified hereunder pursuant to Section 11.4, any transactions, services claim for economic losses based upon the rate of return on the Notes and (vi) the transfer of the Property by any Indemnified Person other than pursuant to the Lease or matters that are the subject Agency Agreement or arise in connection with the exercise of rights or remedies under the Operative Agreements.
Section 11.1 shall be construed as an indemnity only and shall not be construed as a result guaranty of this Agreement or residual value of any of the transactions contemplated hereby Property (including, without limitation, relating with respect to payment of the properties or business of any BorrowerProperty Cost), or any default by as a Borrower in guaranty of the performance or observance of any representation, warranty, covenant or condition in Notes. The parties hereto acknowledge and agree that this Agreement Section 11.1 shall not be construed as an indemnity with respect to Impositions or any other Loan Document); provided, however, taxes and that such indemnity the Lessee's sole indemnification obligation with respect to Impositions shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, be as applicableset forth in Section 11.2. If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including without limitation a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding), for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall -------- ------- be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure period of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceedingthirty (30) days, such Indemnified Person shall have endeavor to, in such notice to the right to employ separate counsel and to participate in Indemnity Provider, inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period unless the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available required by such law or regulation to it which are different from or additional take action prior to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense end of such action on behalf seven (7) day period; provided, further, -------- ------- that the failure of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ give the notices referred to in this sentence shall not diminish the Indemnity Provider's obligation hereunder except to the extent such failure materially and adversely affects the ability of the Indemnity Provider to contest such Claim. If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the reasonable expense of the Indemnity Provider, in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided, however, that (A) if such Claim, in the Indemnity -------- ------- Provider's reasonable discretion, can be pursued by the Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the Indemnified Person may request in writing that the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to be unreasonably withheld or delayed; provided, however, that -------- ------- any Indemnified Person may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a potential conflict of interest between such Indemnified Person and the Indemnity Provider)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, -------- that Borrowers all decisions ultimately shall not be liable made in the discretion of the controlling party. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1 by way of indemnification or advance for the feespayment of an amount regarding such Claim, costs and except reasonable expenses of more than one separate counsel at the same time for all therefrom incurred by such Indemnified Persons Person in connection with the same response to such Claim. Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be required to take any action and any separate but substantially similar or related action in the same jurisdiction. Borrowers Indemnity Provider shall not consent be permitted to respond to any Claim in its own name or that of the entry of any judgment or enter into any settlement in any such litigation or proceeding Indemnified Person unless such judgment or settlement includes as an unconditional term thereof (A) the giving by the claimant or plaintiff Indemnity Provider shall have agreed to pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including without limitation all reasonable legal, accounting and investigatory fees and disbursements and the Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim hereunder, (B) in the case of a release from Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the amount of the potential indemnity (taking into account all liability in respect similar or logically related Claims that have been or could be raised for which the Indemnity Provider may be liable to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due pay an indemnity under this Section 2.22 11.1) exceeds $50,000 (or such lesser amount as may be subsequently agreed between the Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that a reasonable basis for such appeal exists) and (F) no Lease Event of Default shall have occurred and be continuing. In no event shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an Affiliate) if the subject matter thereof shall be payable within ten of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless there shall have been a change in law (10or interpretation thereof) days and the Indemnified Person shall have received, at the Indemnity Provider's expense, an opinion of written demand thereforindependent counsel selected by the Indemnity Provider and reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by or adverse admission by or with respect to the Indemnified Person.
Appears in 1 contract
Samples: Participation Agreement (Capital One Financial Corp)
General Indemnity. Without limiting any other provision Subject to the provisions of this Agreement or of any other Loan Document, Borrowers hereby jointly Sections 10.4 and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against10.5, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis from and against any Claims which may be imposed on, incurred by or asserted against an Indemnified Person by any other Person (including Claims resulting from an Indemnified Party’s ordinary negligence, but not including Claims to the extent such Claims arise from the gross negligence or willful misconduct of such Indemnified Person) in any way relating to or arising, or alleged (by any Person asserting such a Claim against an Indemnified Person) to arise, out of the execution, delivery, performance or enforcement of this Agreement, the Lease, any other Operative Agreement or on or with respect to any Property or any part thereof, including, without limitation, Claims in any way relating to or arising or alleged to arise out of (a) the properties financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, maintenance, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or business of any Borrowerotherwise), or any default by other disposition of a Borrower in Property, or any part thereof, including the performance acquisition, holding or observance disposition of any representationinterest in any Property, warrantylease or agreement comprising a portion of any thereof; (b) any latent or other defect in any property whether or not discoverable by an Indemnified Person or the Indemnity Provider; (c) any Environmental Claim, covenant or condition in this Agreement any violation of Environmental Laws, or any other Loan Document); provided, however, that such indemnity shall not apply loss of or damage to any such lossesproperty or the environment relating to any Property, claims, damagesthe Lease or the Indemnity Provider; (d) the Operative Agreements, or liabilities any transaction contemplated thereby; (e) any breach by the Lessee of any of its representations or related expenses determined by a court of competent jurisdiction warranties under the Operative Agreements to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person which it is a directorparty or failure by the Lessee to perform or observe any covenant or agreement to be performed by it under any of the Operative Agreements; (f) the transactions contemplated hereby or by any other Operative Agreement, officerin respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g) any personal injury, employeedeath or property damage, Affiliate including without limitation Claims based on strict or agent of a Lender absolute liability in tort; (h) any easement, right, agreement or document referred to in Section 7.5; or (i) any Lien on any Property (other than Liens created by the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableOperative Agreements). If any litigation or proceeding a written Claim is brought made against any Indemnified Person in respect or if any proceeding shall be commenced against such Indemnified Person (including a written notice of which indemnity may be sought against Borrowers pursuant to this Section 2.22such proceeding) for any Claim, such Indemnified Person shall promptly notify Borrowers the Indemnity Provider in writing and shall not take action with respect to such Claim without the consent of the commencement Indemnity Provider for thirty (30) days after the receipt of such litigation notice by the Indemnity Provider; provided, however, that, in the case of any such Claim, if action shall be required by law or proceeding, but regulation to be taken prior to the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account end of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding30-day period, such Indemnified Person shall have endeavor, in such notice to the right Indemnity Provider, to employ separate counsel and to participate in inform the defense Indemnity Provider of such litigation or proceedingshorter period, and Borrowers no action shall bear be taken with respect to such Claim without the reasonable fees, costs and expenses consent of the Indemnity Provider before seven (7) days before the end of such separate counsel if (i) shorter period; provided, further, that the use failure of counsel chosen by Borrowers to represent such Indemnified Person would present to give the notices referred to in this sentence shall not diminish the Indemnity Provider’s obligation hereunder except to the extent such counsel with a conflict failure materially precludes the Indemnity Provider from contesting such Claim. If, within thirty (30) days of interest; receipt of such notice from the Indemnified Person (iior such shorter period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider, in good faith conduct and control such action (including, without limitation by pursuit of appeals) (provided, however, that (A) if such Claim can be pursued by the defendants in, Indemnity Provider on behalf of or targets of, any in the name of such litigation or proceeding include both an Indemnified Person and any Borrowerso long as such Claim, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf reasonable opinion of the Indemnified Person); (iii) Borrowers shall , does not have employed counsel satisfactory to such Indemnified Person in the exercise involve any possibility or criminal liability or any material risk of civil liability, the Indemnified Person's reasonable judgment , at the Indemnity Provider’s request, shall allow the Indemnity Provider to represent conduct and control the response to such Claim and (B) in the case of any Claim, the Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person within a reasonable time after notice of the institution of Person, such litigation consent not to be unreasonably withheld, conditioned or proceedingdelayed; or (iv) Borrowers shall authorize such provided, however, that any Indemnified Person to employ may retain separate counsel at the expense of Borrowersthe Indemnity Provider in the event of a conflict)) by, provided in the sole discretion of the Person conducting and controlling the response to such Claim, (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the Indemnity Provider from time to time. The party controlling the response to any Claim shall consult in good faith with the non-controlling party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such Claim; provided, that Borrowers all decisions ultimately shall be made in the discretion of the controlling party, except that the Indemnity Provider may not agree to any dismissal or settlement of, or other agreement in connection with, any claim without the prior written consent of such Indemnified Person, if such dismissal, settlement or agreement would require any admission or acknowledgment of any culpability or wrongdoing by such Indemnified Person or provides for any nonmonetary relief to be performed by such Indemnified Person. The parties agree that an Indemnified Person may at any time decline to take further action with respect to the response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 10.1 by way of indemnification or advance for the payment of any amount regarding such Claim other than expenses of the action relating to such Claim. Notwithstanding the foregoing provisions of this Section 10.1, an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same required to take any action and no Indemnity Provider shall be permitted to respond to any separate but substantially similar Claim in its own name or related action in that of the same jurisdiction. Borrowers Indemnified Person unless (A) the Indemnity Provider shall not consent have agreed to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff pay and shall pay to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that such Indemnified Person actually incurs in connection with such Claim, including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements, (B) the Indemnified Person shall have reasonably determined that the action to be taken will not result in any material danger of sale, forfeiture or loss of any Property, or any part thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal liability, (C) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified Person), (D) in the case of a release from all liability Claim that must be pursued in respect the name of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified Person an opinion of independent counsel selected by the Indemnified Person and reasonably satisfactory to the Indemnity Provider stating that a reasonable basis exists to contest such Claim, (E) such claim is covered by insurance and (F) no Event of Default shall have occurred and be continuing. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or litigation. The agreements that of Borrowers in an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 2.22 10.1, unless there shall be have been a change in addition law (or interpretation thereof) and the Indemnified Person shall have received, at the Indemnity Provider’s expense, an opinion of independent counsel selected by the Indemnified Person and reasonably acceptable to any liability the Indemnity Provider stating that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten as a result of such change in law (10) days of written demand thereforor interpretation thereof), it is more likely than not that the Indemnified Person will prevail in such contest.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan Document(a) Buyer will be responsible for and shall indemnify, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") againstdefend, and agree to hold harmless each such Indemnified Person harmless fromSeller Indemnitee, on an after-tax basis, from and against any and all claimsClaims: (1) with respect to each Item of Equipment, damages and liabilitieswhich arise on or after the time that title to that Item passes to Buyer (including Claims relating to or arising from any component, including claims brought by equipment, or part installed on that Item, or any shareholder or former shareholder of any Borrowerthe related Technical Documents), and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising which directly or indirectly arise in any manner out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with (aa) the ownership by Buyer or as a result by any third Person of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrowerthat Item, or (bb) the use, possession, dispossession, re-possession, control, operation, location, landing, departure, condition, acceptance, rejection, delivery, non‑delivery, re‑delivery, registration, de‑registration, re‑registration, sale, leasing, wet leasing, chartering, subleasing, importation, exportation, transfer of title, other disposition of title, abandonment storage, maintenance, service, repair, overhaul, testing, design, modification, dismantling, disassembly or re‑assembly of that Item, even if any of the foregoing arise from Buyer’s or its transferee’s use of Seller’s maintenance program; or (2) which directly or indirectly arise in any manner out of or in connection with a Buyer event of default by a Borrower in the performance under this Agreement; or observance (3) arising from or related to any breach of any representation, warranty, or covenant made by Buyer under this Agreement. The foregoing indemnity shall apply to all Claims, regardless of whether any such Claim arises in tort (including strict liability); provided that this § 9.1(a) shall not extend to any liability arising from (x) any Seller Indemnitee’s fraud, gross negligence, or condition willful misconduct, or (y) the breach by any Seller Indemnitee of any representation or warranty in this Agreement or any other Loan Document)documents delivered by such Seller Indemnitee to Buyer; provided, however, provided further that such Buyer’s indemnity obligations set forth in this section shall not apply to any such lossesTax, claimswhether or not indemnity is provided in § 5.4(b).
(b) Seller will be responsible for and shall indemnify, damagesdefend, and hold harmless each Buyer Indemnitee, on an after-tax basis, from and against any and all Claims: (1) with respect to each Item of Equipment, which arise before the time that title to that Item passes to Buyer (including Claims relating to or arising from any component, equipment, or liabilities part installed on that Item, or any of the related Technical Documents), and which directly or indirectly arise in any manner out of or in connection with (aa) the ownership by Seller or by any third Person of that Item, or (bb) the use, possession, dispossession, re-possession, control, operation, location, landing, departure, condition, acceptance, rejection, delivery, non‑delivery, re‑delivery, registration, de‑registration, re‑registration, sale, leasing, wet leasing, chartering, subleasing, importation, exportation, transfer of title, other disposition of title, abandonment storage, maintenance, service, repair, overhaul, testing, design, {00278516.DOCX / } modification, dismantling, disassembly or re‑assembly of that Item by Seller or by any third Person; or (2) which directly or indirectly arise in any manner out of or in connection with a Seller event of default under this Agreement or (3) arising from or related expenses determined to any breach of any representation, warranty, or covenant made by a court Seller under this Agreement. The foregoing indemnity shall apply to all Claims, regardless of competent jurisdiction whether any such Claim arises in tort (including strict liability); provided that this § 9.1(b) shall not extend to have arisen any liability arising from the (1) any Buyer Indemnitee’s fraud, gross negligence, or willful misconduct misconduct, or subjective bad faith (2) the breach by any Buyer Indemnitee of any representation or warranty in this Agreement or any other documents delivered by such Buyer Indemnitee to Seller.
(c) If any Claim is made against a Seller Indemnitee or a Buyer Indemnitee, upon receiving notice of such Indemnified PersonClaim, such Seller Indemnitee or Buyer Indemnitee will promptly notify Buyer or Seller, respectively; provided that any failure by the indemnified party so to notify the indemnifying party shall not relieve the indemnifying party of its obligations to indemnify hereunder except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnifying party may, and if within a reasonable time requested in writing by an indemnified party to do so shall, at the indemnifying party’s expense, resist and defend the action, suit, or proceeding relating to any Claim, or cause it to be resisted and defended by counsel designated by the indemnifying party (which counsel shall be reasonably satisfactory to the indemnified party), and the indemnified party shall furnish to the indemnifying party such Indemnified Person is a directorinformation relating to the conduct or status of such defense as the indemnifying party or its counsel from time to time reasonably requests. If the indemnifying party does not resist or defend such action, officersuit, employee, Affiliate or agent of a Lender or proceeding as provided for in the Agentproceeding sentence, then, to unless the extent indemnifying party has paid the Claim that is the subject of such gross negligenceaction, willful misconduct or subjective bad faithsuit, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so indemnified party may elect to notify Borrowers shall not relieve Borrowers from any other obligation resist or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceedingaction, Borrowers shall be entitled to participate in such litigation or proceeding andsuit, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to designated by the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel indemnified party at the expense of Borrowers, provided that Borrowers shall not be liable indemnifying party’s cost (for the reasonable expenses and legal fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Air Transport Services Group, Inc.)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentLessee assumes and agrees to indemnify, Borrowers hereby jointly defend and severally indemnify each Lenderkeep harmless Owner Participant, the Agent Trust Company, Lessor and their respective directors, officers, employees, Affiliates successors and agents (collectively, "Indemnified Persons") againstpermitted assigns, and agree to hold their agents and employees (each such Indemnified Person harmless froman “Indemnitee” and collectively “Indemnitees”), from and against any amount payable by the Owner Participant under Section 7.1 of the Trust Agreement, whether as a Trust Claim or otherwise and all claimsdocumented losses, damages claims and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees reasonable, documented legal expenses (other than such losses, claims or expenses as may result from the gross negligence or willful misconduct of such party, its agents or employees and expensesother than taxes, incurred related charges, assessments or withholdings of any nature (the sole provision for which is in Section 9 hereof)), arising on account of the ordering, acquisition, delivery, installation or rejection of the Equipment, the possession, maintenance, use, condition (including without limitation, latent and other defects and whether or not discoverable by Lessor or Lessee, any claim in tort for strict liability, and any claim for patent, trademark or copyright infringement) or operation of any item of the Equipment, and by whomsoever used or operated (other than Lessor or Owner Participant), during the Term of this Lease with respect to that item of the Equipment, the loss, damage, destruction, removal, return or surrender of the Equipment, or any item thereof; provided, however, the indemnities contained in this Section 14(a) will not extend to any loss, claim, cost or expense:
(i) resulting from any sale, disposition or transfer by Lessor or Owner Participant of any of its interest herein, in the Equipment or any document or instrument executed and delivered in connection herewith except for costs and expenses and third party claims of any such Indemnified Person transfer, sale or assignment contemplated in Sections 12, 15, 19 or 20 hereof; or
(ii) to the extent such loss, claim or expense relates to acts or events not attributable to Lessee that occur after the Lease shall have terminated with respect to such item of Equipment; or
(iii) imposed on an Indemnitee to the extent attributable or arising out of any claimact, litigationmisrepresentation, investigation or proceeding (whether omission of such Indemnitee or not any of its Affiliates in breach of the obligations or representation of such Indemnified Person is a party thereto) relating to any transactions, services Indemnitee or matters that are its Affiliates under the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business Operative Documents. Indemnitees shall give Lessee prompt notice of any Borrower, claim or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition in this Agreement or any other Loan Document)liability hereby indemnified against; provided, however, that the failure to give such indemnity prompt notice shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their affect Lessee’s obligations under this Section 2.22, except where hereunder unless such failure irrevocably materially and adversely prejudices Borrowers' ability to defend such litigation or proceedingthe rights of Lessee. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers Lessee shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume control the defense of any claim or liability hereby indemnified against, so long as Lessee is diligently pursuing such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to defense and no Default shall have occurred and be continuing. In the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume event Lessee assumes the defense of any such litigation or proceedingaction, such Indemnified Person any Indemnitee shall have the right to employ separate counsel in such action and to participate in therein, but the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs fees and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers such Indemnitee. Lessee shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent agree to the entry settlement of any judgment claim, dispute or enter into other proceeding giving rise to any settlement claim for indemnification hereunder or make any admission of any liability on behalf of any Indemnitee, without the prior written consent of such Indemnitee such consent not to be unreasonably withheld in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigationnon-criminal, civil matter. The agreements of Borrowers Nothing contained in this Section 2.22 14(a) shall be in addition to construed as a guaranty by Lessee of any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days Residual Value or Remaining Life of written demand thereforany item of the Equipment.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or limitation on the rights of any other Loan DocumentIndemnitee under Article VI of the Construction Agency Agreement, Borrowers Lessee agrees, whether or not any of the transactions contemplated hereby jointly shall be consummated, to indemnify, protect, defend, save and severally indemnify keep harmless each Lender, the Agent Indemnitee from and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, against any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesClaims that may be imposed on, incurred by or asserted against such Indemnified Person arising out of any claimIndemnitee, litigation, investigation or proceeding (whether or not such Indemnified Person Indemnitee shall also be indemnified as to any such Claim by any other Person, whether or not such Claim is a party thereto) covered by the indemnification at Article VI of the Construction Agency Agreement and whether or not such Claim arises or accrues prior to the Document Closing Date, the initial Advance Date or the Completion Date for any Site, in any way relating to or arising out of (a) any transactions, services of the Operative Documents or matters that are the subject or arise in connection with or as a result any of this Agreement or the transactions contemplated hereby thereby or any investigation, litigation or proceeding in connection therewith, and any amendment, modification or waiver in respect thereof; or (b) the Premises or any part thereof or interest therein; or (c) the acquisition, mortgaging, design, construction, preparation, installation, inspection, delivery, non-delivery, acceptance, rejection, purchase, ownership, possession, rental, lease, sublease, repossession, maintenance, repair, alteration, modification, addition or substitution, storage, transfer or title, redelivery, use, financing, refinancing, operation, condition, sale (including, without limitation, relating any sale or other transfer pursuant to Articles XX, XXI or XXII of the Lease), return or other disposition of all or any part of any interest in the Premises or the imposition of any Lien (or incurring of any liability to refund or pay over any amount as a result of any Lien) thereon, including, without limitation: (i) Claims or penalties arising from any violation of law or in tort (strict liability or otherwise), (ii) loss of or damage to the properties environment (including, without limitation, investigation costs, cleanup costs, response costs, remediation and removal costs, costs of corrective action, costs of financial assurance, and all other damages, costs, fees and expenses, fines and penalties, including natural resource damages), or business death or injury to any Person, and all expenses associated with the protection of wildlife, aquatic species, vegetation, flora and fauna, and any mitigative action required by or under any Environmental Laws, (iii) latent or other defects, whether or not discoverable, (iv) any Claims resulting from the existence or Release of any BorrowerHazardous Materials at or from the Premises, (v) the construction of the Financed Improvements and (vi) any Claim for patent, trademark or copyright infringement; (d) the offer, issuance, sale, transfer or delivery of the Notes or Certificates; (e) the breach or alleged breach by Lessee of any representation or warranty made by it or deemed made by it in any Operative Document; (f) the transactions contemplated hereby or by any other Operative Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any prohibited transaction described in Section 4975(c) of the Code, or (g) any default other agreement entered into or assumed by a Borrower Lessee in connection with the performance Premises (including, in connection with each of the matters described in this Section 7.1 to which this indemnity shall apply, matters based on or observance arising from the negligence of any representation, warranty, covenant or condition in this Agreement or any other Loan DocumentIndemnitee); provided, however, that to the extent any such Claim relates to a specific Site during the Construction Period for such Site, Lessee's obligation to indemnify any indemnitee under this Section solely to the extent such Claim relates directly to such Site shall arise upon the Base Term Commencement Date of the Lease Supplement for such Site, whereupon Lessee shall pay such indemnity Claim immediately to the Indemnitee entitled thereto (provided that the foregoing shall not limit the obligations of Construction Agent to indemnify each Construction Period Indemnitee and Borrower to indemnify each Participant Indemnitee pursuant to Article VII of the Construction Agency Agreement and Article VII of the Loan Agreement). Notwithstanding the foregoing provisions of this Section 7.1(a), Lessee shall not be obligated to indemnify an Indemnitee under this Section 7.1(a) for any Claim to the extent that it is attributable to any of the following: (i) Taxes, loss of tax benefits and the cost and expense of tax controversies (whether or not indemnified by Lessee under Section 7.2), other than a payment necessary to make payments under this Section 7.1 on an after-tax basis; provided, that the exclusion set forth in this clause (i) does not apply to any such losses, claims, damages, taxes or liabilities or related expenses determined by a court penalties included in Claims against which the Indemnitee is provided an indemnification under clause (f) of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest7.1; (ii) the defendants in, gross negligence or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense willful misconduct of such action on behalf of the Indemnified Person)Indemnitee; (iii) Borrowers shall not have employed counsel satisfactory to the breach by such Indemnified Person Indemnitee of its representations and warranties in Sections 4.2, 4.3, or 4.4, as the exercise case may be or the breach by an Indemnitee of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceedingits covenant in Section 6.2(a) hereof; or and (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at any Claim resulting from the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry imposition of any judgment or enter into any settlement in any Certificate Trustee Lien for which such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof Indemnitee is responsible for discharging under the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforOperative Documents.
Appears in 1 contract
General Indemnity. Without limiting (a) Subject to Clause 25.1(b), (c), (d) and (e), the Lessee hereby agrees at all times to indemnify and hold harmless the Lessor for any Loss (including any environmental claim and any amounts which the Lessor is required to pay to any Tax Investor under clause 12 of the Tax Loan Agreement) other than in respect of Taxes, which the Lessor or any Member at any time suffers or incurs, in its capacity as owner of the Assets or Member (respectively), as a result of any third party claim (including but not limited to any claim by subcontractors) and as confirmed by an executory judgment despite appeal (jugement exécutoire malgré l’axxxx) or a final judgment (jugement ayant acquis l’autorité de la chose jugée) it being understood that the Lessee shall be consulted as to any decision to file or not any appeal and should take the final decision whether or not to file such appeal (each such Loss covered by the indemnity under this Clause 25.1 being an “Operational Loss”) including, but not limited to:
(i) arising directly or indirectly out of or in any way connected with the purchase, manufacture, ownership, possession, transportation, construction, management, import, export, storage, insurance, sale, control, use or operation, design, condition, testing, delivery, leasing, subleasing, maintenance, repair, service, modification, overhaul, replacement, removal or redelivery of the Assets or any part thereof by the Lessee, the Lessor or any other provision of this Agreement or of any other Loan DocumentPerson, Borrowers hereby jointly and severally indemnify each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expenses, incurred by such Indemnified Person arising out of any claim, litigation, investigation or proceeding (whether or not such Indemnified Person is a party thereto) relating Loss may be attributable to any transactionsdefect in the Assets or any part thereof or to the design, services testing or matters that are use thereof or to any maintenance, service, repair, overhaul, or to any other reason (whether similar to any of the subject foregoing or not), and regardless of when the same shall arise in connection with (whether prior to, during, or after termination of, the Lease Term); or
(ii) arising as a result of this Agreement any design, article or material in the Assets or any part thereof or the transactions contemplated hereby (including, without limitation, relating operation or use thereof constituting or being alleged to the properties or business constitute an infringement of any Borrowerpatent, copyright, design or other proprietary right; or
(iii) in relation to preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of the Assets, or any default by a Borrower in securing the performance or observance release of any representation, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or Assets.
(b) The indemnification amount (the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person “Indemnification Amount”) in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of an Operational Loss incurred or sustained by the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding Lessor shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if equal to:
(i) the use amount of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interestOperational Loss; less
(ii) the defendants innet amount (after deducting the reasonable costs or expenses to the Lessor in collecting such amount and any Taxes) paid to the Lessor by any insurer or third party in respect of such Loss; less
(iii) the amount of any actual reduction in Taxes, or targets ofother costs or expenses of the Lessor resulting from such Loss; plus
(iv) in the event of any cost resulting from Taxes imposed by New Caledonia, France, the State of Delaware, Canada or any other country in which the Lender (or successor or assign) or a New Participant is incorporated and actually borne or incurred by the Lessor by reason of the receipt or accrual of indemnity payments under this Lease, by such litigation additional amount as shall be necessary to ensure that the Lessor actually receives an amount equal to the amount it would have received had no such costs been imposed.
(c) If, after an Indemnification Amount is paid to the Lessor:
(i) the Lessor receives from an insurer or proceeding include both a third party any amount in respect of such Operational Loss; or
(ii) the Lessor realises any benefit resulting from such Operational Loss that, in each case, would have reduced the Indemnification Amount paid in respect of such Operational Loss pursuant to Clause 25.1(b)(ii) or Clause 25.1(b)(iii); or
(iii) the executory judgment despite appeal on the basis of which the Lessor has received indemnification, is partially or totally invalidated or the appeal decision confirming such judgment, if any, is invalidated and the Lessor receives any amount in this regard, then the Lessor shall without delay repay to the Lessee, as applicable, the net amount so received or the benefit so realised. If, as a result of an Indemnified Person and any Borrowerexecutory judgment despite appeal (jugement éxecutoire malgré axxxx), and such Indemnified Person shall have reasonably concluded that there may be legal defenses the Lessor has made payments to the third party by means of funds made available to it which are different by the Lessee and such payments could be refundable by such third party as a result of a final judgment, the Lessor shall immediately transfer and assign to the Lessee its claim on the third party resulting from or additional such final judgment.
(d) The Lessee shall pay any Indemnification Amount to those available to any Borrower the Lessor upon receipt of documentation supporting that Indemnification Amount.
(in which case Borrowers e) The provisions of this Clause 25.1 shall not have apply to, and the right Indemnification Amount shall exclude amounts relating to, any loss incurred or sustained by the Lessor, which is directly caused by (and only to direct the defense extent that such loss is directly caused by):
(i) the gross negligence (faute intentionnelle) or wilful misconduct (dol) of such action on behalf any Tax Investor or any Member;
(ii) any failure of a Tax Investor to make or abandon its Tax Advances in accordance with the Indemnified Person); Tax Loan Agreement;
(iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in any breach by a Tax Investor or a Member of any requirement imposed on it by the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or DGI Final Approval that is under its sole control;
(iv) Borrowers shall authorize such Indemnified Person any material breach by the Lessor of its covenants under this Lease; or
(v) an imposition on the net income of the Lessor, it being understood that the exclusions set out in paragraphs (i) to employ separate counsel at the expense (iv) of Borrowers, this Clause 25.1(e) will apply only to that Tax Investor or that Member which has defaulted as provided that Borrowers shall under paragraphs (i) to (iv) of this Clause 25.1(e) and not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment other Tax Investors or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforMembers.
Appears in 1 contract
Samples: Lease Agreement (Inco LTD)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentCTA agrees to indemnify, Borrowers hereby jointly pay, defend and severally indemnify each Lenderhold the City, the Agent and their respective directors, officersits elected and appointed officials, employees, Affiliates agents and agents affiliates (collectively, "Indemnified Persons"individually an “Indemnitee,” and collectively the “Indemnitees”) harmless from and against, and agree to hold each such Indemnified Person harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, damages costs, expenses and liabilities, including claims brought by any shareholder or former shareholder disbursements of any Borrowerkind or nature whatsoever (and including without limitation, and related expenses, including the reasonable counsel fees and expensesdisbursements of counsel for such Indemnitees in connection with any investigative, incurred by such Indemnified Person arising out of any claimadministrative or judicial proceeding commenced or threatened, litigation, investigation or proceeding (whether or not such Indemnified Person is Indemnitees shall be designated a party thereto), that may be imposed on, suffered, incurred by or asserted against the Indemnitees in any manner relating or arising out of:
(i) relating CTA’s failure to comply with any transactionsof the terms, services covenants and conditions contained within this Agreement; or
(ii) CTA’s or matters that are the subject any contractor’s failure to pay General Contractors, subcontractors or arise materialmen in connection with the TIF-Funded Improvements or as a any other Project improvement; or
(iii) the existence of any material misrepresentation or omission in this Agreement, the Redevelopment Plan or any other document related to this Agreement that is the result of this Agreement information supplied or omitted by CTA or its corporate authorities, agents, representatives, employees, contractors or persons acting under the transactions contemplated hereby control or at the request of CTA; or
(including, without limitation, relating iv) CTA’s failure to the properties or business of cure any Borrower, or any default by a Borrower in the performance or observance of any representation, warranty, covenant or condition misrepresentation in this Agreement or any other Loan Document)agreement relating hereto; provided, however, that such indemnity CTA shall not apply have no obligation to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen an Indemnitee arising from the gross negligence, wanton or willful misconduct of that Indemnitee. To the extent that the preceding sentence may be unenforceable because it is violative of any law or subjective bad faith of such Indemnified Personpublic policy, CTA shall contribute the maximum portion that it is permitted to pay and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or satisfy under the Agent, thenapplicable law, to the extent payment and satisfaction of such gross negligence, willful misconduct all indemnified liabilities incurred by the Indemnitees or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicableany of them. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing The provisions of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person undertakings and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers indemnification set out in this Section 2.22 13.01 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under survive the termination of this Section 2.22 shall be payable within ten (10) days of written demand thereforAgreement.
Appears in 1 contract
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentThe Borrower hereby agrees to defend, Borrowers hereby jointly indemnify, save and severally indemnify each Lenderkeep harmless, on an After-Tax Basis, the Agent and their respective Lender together with its officers, directors, officersagents, employeesemployees and affiliates (each, Affiliates and agents (collectively, "Indemnified Persons"an “Indemnitee”) against, and agree agrees to hold protect, save and keep harmless each such Indemnified Person harmless fromIndemnitee from (whether or not the transactions contemplated herein or in any of the other Basic Agreements are consummated), any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesExpenses imposed on, incurred by such Indemnified Person or asserted against the Indemnitee, in any way relating to or arising out of or which would not have occurred but for:
(a) the Basic Agreements, the consummation of the transactions contemplated thereby, the failure of Borrower to perform its obligations under the Basic Agreements, or the enforcement of any claimof the terms thereof;
(b) the manufacture, litigationdesign, investigation purchase, resale, lease, acceptance or proceeding rejection of any Airframe, Engine, Propeller or Part;
(c) an Aircraft (or any portion thereof) or any engine or propeller installed on any Airframe or any airframe on which an Engine or a Propeller is installed whether or not arising out of the manufacture, purchase, registration, re-registration, refinancing, financing, ownership, delivery, nondelivery, lease, sublease, possession, use or non-use, operation, maintenance, modification, alteration, condition, replacement, repair, substitution, sale, return or other disposition of such Indemnified Person is a party thereto) relating to Aircraft (or any transactionsportion thereof), services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any claim for patent, trademark or copyright infringement. If a claim is made against an Indemnitee involving one or more Expenses and such Indemnitee has notice thereof, such Indemnitee will promptly after receiving such notice give notice of such claim to the properties or business Borrower provided that the failure to provide such notice will not release the Borrower from any of any Borrowerits obligations to indemnify hereunder, or any default by a Borrower except to the extent such failure results in an increase in the performance or observance of any representationExpenses payable hereunder, warranty, covenant or condition in this Agreement or any other Loan Document); provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, but only to the extent of such gross negligenceincrease; and no payment by the Borrower to such Indemnitee pursuant to this Section 2.7 will be deemed to constitute a waiver or release of any right or remedy which the Borrower may have against such Indemnitee for any actual damages as a result of the failure by such Indemnitee to give the Borrower such notice. The Borrower will be entitled, willful misconduct at its sole cost and expense (and acting through counsel reasonably acceptable to such Indemnitee):
(1) (so long as the Borrower has agreed in a writing reasonably acceptable to such Indemnitee that the Borrower is liable to such Indemnitee for such Expense, if any) in any judicial or subjective bad faithadministrative proceeding that involves solely a claim for one or more Expenses, to assume responsibility for and control thereof;
(2) (so long as the Borrower has agreed in a writing reasonably acceptable to such Indemnitee for such Indemnitee that the Borrower is liable to such Indemnitee for such Expense, if any) in any judicial or administrative proceeding involving a claim for one or more Expenses and other claims related or unrelated to the transactions contemplated by the Basic Agreements, to assume responsibility for and control of such claim for Expenses to the extent that the same may be and is severed from such other claims (and such Indemnitee will use its best efforts to obtain such severance); and
(3) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee and to be allowed, at the Borrower’s sole expense, to participate therein. Such Indemnitee will supply the Borrower with such information reasonably requested by the Borrower as is necessary or advisable for the Borrower to control or participate in any proceeding to the extent permitted by this Section 2.7. Such Indemnitee will not (unless such Indemnitee waives its right to be indemnified with respect to such Expense under this Section 2.7) enter into a settlement or other compromise with respect to any Expense without the prior written consent of the Borrower. Upon payment of any Expense pursuant to this Section 2.7, the Borrower, without any further action, will be subrogated to any claims such Indemnitee may have relating thereto. Such Indemnitee at the Borrower’s expense agrees to give such further assurances or agreements and to cooperate with the Borrower to permit the Borrower to pursue such claims, if any, to the extent reasonably requested by the Borrower. The Borrower agrees to pay each Expense within five (5) Business Days of demand therefor; provided that such amount shall not be due in the event such Indemnitee has failed to provide reasonably adequate information to the Borrower regarding such demand; and provided, further, that the Borrower shall be entitled to contest such Expense as provided for in this Section 2.7. In the event the Borrower contests such Expense, such Expense shall be payable at the time such Expense is due as set forth herein. To the extent permitted by applicable law, interest at the Interest Rate will be paid, on demand, on any Expense or other amount or indemnity shall not apply paid when due pursuant to such Lender or this Section 2.7 until the Agent, same will be paid. Such interest will be paid in the same manner as applicable. If any litigation or proceeding is brought against any Indemnified Person the unpaid amount in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel interest is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefordue.
Appears in 1 contract
Samples: Loan Agreement (Gulfstream International Group Inc)
General Indemnity. Without limiting any other provision of this Agreement or of any other Loan DocumentOwner hereby agrees to indemnify, Borrowers hereby jointly and severally indemnify on an ----------------- after-tax basis, each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") Indemnitee against, and agree agrees to hold protect, save and keep harmless and shall pay on demand each such Indemnified Person harmless fromof them from (whether or not the transactions contemplated herein or in any of the other Operative Documents or the Pass Through Trust Agreements are consummated), any and all claims, damages Expenses and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesTaxes imposed on, incurred by such Indemnified Person or asserted against any Indemnitee, in any way relating to or arising out of (A) the Operative Documents and any claimPermitted Lease, litigationor the enforcement of any of the terms of any thereof; or (B) the manufacture, investigation design, purchase, resale, acceptance or proceeding rejection of the Airframe or any Engine or Parts; or (C) the Aircraft (or any portion thereof) or any Engine whether or not such Indemnified Person installed on the Airframe or any airframe on which an Engine is a party theretoinstalled whether or not arising out of the finance, refinance, ownership, delivery, nondelivery, storage, lease, possession, use, non-use, operation, maintenance, modification, alteration, condition, sale, replacement, substitution, disposition, registration, reregistration or airworthiness of the Aircraft (or any portion thereof) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating latent or other defects, whether or not discoverable, strict tort liability and any damage to property or the environment, death or injury to any person and any claim for patent, trademark or copyright infringement; or (D) the offer, sale, holding, transfer or delivery of the Equipment Notes or the Pass Through Certificates, whether before, on or after the applicable Issuance Date (the indemnity in this clause (D) to extend also to any person who controls an Indemnitee, its successors, assigns, employees, directors, officers, servants and agents within the meaning of Section 15 of the Securities Act of 1933, as amended); or (E) the Confirmation, the Pass Through Documents and each Pass Through Trust Agreement (and any amendments thereto), or the enforcement of any of the terms of any thereof; provided, with respect to an Indemnitee, that the foregoing indemnity shall not extend to any Expense to the properties extent resulting from or business arising out of one or more of the following:
(1) any Borrower, representation or warranty by such Indemnitee or any default Related Indemnitee (as defined below) thereof in any Fundamental Documents being incorrect; or [Participation Agreement ([______])]
(2) the failure by a Borrower in the performance such Indemnitee or observance of any representation, warrantyRelated Indemnitee thereof to perform or observe any agreement, covenant or condition in this Agreement any of the Fundamental Documents; or
(3) the willful misconduct or the gross negligence of such Indemnitee or any Related Indemnitee thereof (other Loan Documentthan gross negligence imputed to such Indemnitee or any Related Indemnitee thereof solely by reason of its interest in the Aircraft); or
(4) a disposition (voluntary or involuntary) by such Indemnitee of all or any part of its interest in any Equipment Note or any of all or any part of its interest in the Fundamental Documents, other than during the continuance of an Indenture Event of Default or in connection with the exercise of remedies under any Fundamental Documents or pursuant to the exercise by Owner of its option to redeem or refinance the Equipment Notes; or
(5) any Tax; provided, however, that such indemnity this Clause (5) -------- shall not apply to (A) Taxes taken into consideration in making any such lossespayments on an after-tax basis or (B) any license, claimsdocumentation, damagesregistration or filing fees imposed upon or in connection with the execution, delivery, registration or filing of the Indenture; or
(6) in the case of the Indenture Trustee in its individual capacity, any Expense to the extent attributable to the failure of the Indenture Trustee to distribute funds received and distributable by it in accordance with the Indenture, (B) in the case of the Subordination Agent in its individual capacity, any Expense to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, or liabilities (C) in the case of any Pass Through Trustee in its individual capacity, any Expense to the extent attributable to the failure of such Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreement to which it is a party; or
(7) other than during the continuation of an Indenture Event of Default, the authorization or related expenses determined giving or withholding of any future amendments, supplements, waivers or consents by a court such Indemnitee or any Related Indemnitee thereof with respect to any of competent jurisdiction the Fundamental Documents unless such amendments, supplements, waivers or consents are requested by Owner or are required pursuant to have arisen the terms of the Fundamental Documents (unless the same results from the gross negligence, willful misconduct or subjective bad faith actions of such Indemnified PersonIndemnitee or Related Indemnitee); or
(8) except to the extent attributable to acts or events occurring on or prior thereto, acts or events which occur after the termination of the Indenture in accordance with Section 10.01 thereof; or
(9) any Expense to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Aircraft, any Equipment Note, any Pass Through Certificate or any similar interest in violation of the Securities Act, other applicable federal, state or foreign securities laws or any other law on or prior to the applicable Issuance Date; or
(10) any Expense or other amount which such Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; or
(11) any Expense that is an ordinary and usual operating or overhead expense; or
(12) any Expense resulting from any Lien on the Aircraft which such Indemnitee or any of its Related Indemnitees is required to discharge under the Fundamental Documents;
(13) activities or transactions of such Indemnitee not arising out of or resulting form, or attributable to the transactions contemplated by the Fundamental Documents;
(14) Expenses under Clauses (D) or (E) hereof to the extent such Expenses exceed the Owner's Pro Rata Share of such Expenses; or
(15) if such Indemnified Person Indemnitee shall be a Noteholder or any Related Indemnitee, for any Expense incurred by or asserted against such Indemnitee as a result of any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code. For purposes of this Section 5(b), if such Indemnitee is a Pass Through Trustee, the Subordination Agent or the Indenture Trustee or a director, officer, employee, agent, servant or Affiliate or agent of any thereof, a Lender Person shall be considered a "Related Indemnitee" with respect to any such Person if such Person is a Pass Through Trustee, the Subordination Agent or the AgentIndenture Trustee or a director, thenofficer, to the extent of such gross negligenceemployee, willful misconduct agent, servant or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry Affiliate of any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand thereforthereof.
Appears in 1 contract
General Indemnity. Without limiting any other provision Subject only to the limitations described in the last paragraph of this Agreement or of any other Loan DocumentClause 16.1, Borrowers hereby jointly Lessee agrees to indemnify, reimburse and severally indemnify hold harmless each Lender, the Agent Indemnitee from and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, against any and all claims, damages and damages, losses, liabilities, including claims brought by any shareholder demands, suits, judgments, causes of action, legal proceedings, whether civil or former shareholder of any Borrowercriminal, penalties, fines and other sanctions, and related expensesany reasonable attorney's fees and other reasonable costs and expenses in connection herewith or therewith, including reasonable counsel fees and expenses, incurred by such Indemnified Person any of the foregoing arising out of any claim, litigation, investigation or proceeding imposed with or without Lessor's fault or negligence (whether passive or not such Indemnified Person is a party theretoactive) relating or under the doctrine of strict liability (any and all of which are hereafter referred to as "Claims") which in any transactionsway may result from, services or matters that are the subject pertain to or arise in connection with or as a result of this Agreement or the transactions contemplated hereby (including, without limitation, relating to the properties or business of any Borrowermanner out of, or are in any default by a Borrower in manner related to (i) the performance or observance of any representationAircraft, warranty, covenant or condition in this Agreement or any other Loan Lease Document), any interest herein or any document executed in connection herewith or therewith, or the breach of any representation, warranty or covenant made by Lessee hereunder or under any other such document, or (ii) the condition, manufacture, re-delivery, lease, acceptance, rejection, possession, return, disposition, maintenance, repair, use or operation of the Aircraft either in the air or on the ground at any time after the Delivery Date and before the Redelivery of the Aircraft to Lessor as and when required hereby, or (iii) any defect in the Aircraft (whether or not discovered or discoverable by Lessee or Lessor) arising from the material or any articles used therein or from the design, testing or use thereof or from any maintenance, service, repair, overhaul or testing of the Aircraft, whether or not the Aircraft is in the possession of Lessee, and regardless of where the Aircraft may then be located, or (iv) any transaction, approval or document contemplated by this Agreement or any Lease Document or given or entered into in connection herewith or therewith, (v) any payments required under any Lease Document, or (vi) otherwise in connection with the transactions contemplated by the Lease Documents; provided, however, that such indemnity Lessee shall not apply be subrogated to all rights and remedies which Lessor may have against the Manufacturer of the Aircraft and its subcontractors as to any such lossesClaims, claimsbut only to the extent that Lessee satisfies its indemnification to Lessor with respect to such Claims. Lessee shall not be required to pay or discharge any Claim brought by a third party so long as the validity or the amount thereof shall be diligently contested in good faith and on reasonable grounds by Lessee, damagesat no cost or expense to Lessor. Lessee hereby waives, and releases each Indemnitee from, any Claims (whether existing now or hereafter arising) for or on account of or arising or in any way connected with injury to or death of personnel of Lessee or loss or damage to property of Lessee or the loss of use of any property which may result from or arise in any manner out of or in relation to the ownership, leasing, condition, use or operation of the Aircraft, either in the air or on the ground, or liabilities or related expenses determined which may be caused by a court of competent jurisdiction to have arisen any defect in the Aircraft from the gross negligencematerial or any article used therein or from the design or testing thereof, or use thereof, or from any maintenance, service, repair, overhaul or testing of the Aircraft regardless of when such defect may be discovered, whether or not the Aircraft is at the time in the possession of Lessee, and regardless of the location of the Aircraft at any such time. The indemnities contained in this Clause 16.1 shall continue in full force and effect notwithstanding the expiration or other termination of this Lease and are expressly made for the benefit of and shall be enforceable by each Indemnitee; provided, however, that Lessee shall not be obligated to pay any indemnity pursuant to this Clause 16.1 with respect to any amount to the extent that such amount arises out of or is measured by acts, failures to act, events or periods of time (or any combination of the foregoing) that occur after the Aircraft has been redelivered to Lessor pursuant to Clause 15 hereof (under circumstances not involving a repossession pursuant to Clause 17.2 hereof) and is no longer subject to this Agreement and all obligations of Lessee under this Agreement have been discharged (other than obligations which by their express terms survive the expiration of the Lease Term) unless any such act or event shall itself result from or be attributable to an act or omission of Lessee which occurred prior to the redelivery of the Aircraft and the discharge of Lessee's obligations under this Agreement. Notwithstanding the foregoing provisions of this Clause 16.1, Lessee shall not be obligated to make any payment by way of indemnity to any Indemnitee (i) in respect of any Claims to the extent such Claims result from the willful misconduct or subjective bad faith gross negligence of such Indemnified Person, and if such Indemnified Person is a director, officer, employee, Affiliate any Indemnitee; or agent (ii) any Claim arising out of a Lender or the Agent, then, period before delivery of the Aircraft to Lessee except to the extent of such gross negligence, willful misconduct relating to a matter required to be corrected by Lessee hereunder; or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate in such litigation or proceeding and, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ separate counsel at the expense of Borrowers, provided that Borrowers shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent to the entry of any judgment extent such Claims are for Taxes (whether or enter into any settlement in any not Lessee is required to indemnify against such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff Taxes pursuant to such Indemnified Person of a release from all liability in respect to such claim or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefor.Clause 16.2)
Appears in 1 contract
Samples: Lease Agreement (Pan Am Corp /Fl/)
General Indemnity. Without limiting The Lessee, whether or not any other provision of this Agreement or of any other Loan Documentthe ----------------- transactions contemplated hereby shall be consummated, Borrowers hereby jointly assumes liability for and severally agrees to defend, indemnify and hold harmless each Lender, the Agent and their respective directors, officers, employees, Affiliates and agents (collectively, "Indemnified Persons") against, and agree to hold each such Indemnified Person harmless from, on an After Tax Basis from and against any and all claims, damages and liabilities, including claims brought by any shareholder or former shareholder of any Borrower, and related expenses, including reasonable counsel fees and expensesClaims which may be imposed on, incurred by such or asserted against an Indemnified Person in any way relating to or arising or alleged to arise out of (a) the financing, refinancing, purchase, acceptance, rejection, ownership, design, construction, delivery, acceptance, nondelivery, leasing, subleasing, possession, use, operation, repair, modification, transportation, condition, sale, return, repossession (whether by summary proceedings or otherwise), or any claim, litigation, investigation other disposition of the Property or proceeding any part thereof; (b) any latent or other defects in any property whether or not such discoverable by an Indemnified Person is a party thereto) relating to any transactions, services or matters that are the subject or arise in connection with or as a result of this Agreement or the transactions contemplated hereby Lessee; (includingc) a violation of Environmental Laws, without limitation, Environmental Claims or other loss of or damage relating to the properties or business of any BorrowerProperties; (d) the Operative Agreements, or any default transaction contemplated thereby; (e) any breach by a Borrower in the performance or observance Lessee of any representation, warranty, of its representations or warranties under the Operative Agreements or failure by the Lessee to perform or observe any covenant or condition agreement to be performed by it under any of the Operative Agreements; and (f) personal injury, death or property damage relating to the Properties, including Claims based on strict liability in this Agreement tort; but in any event excluding (x) Claims to the extent such Claims arise solely out of events occurring after the expiration of the Term and after the Lessee's discharge of all its obligations under the Lease or (y) Claims to the extent such Claims arise solely out of the gross negligence or willful misconduct of an Indemnified Person. The Lessee shall be entitled to control, and shall assume full responsibility for the defense of any other Loan Document)Claim; provided, however, that such indemnity shall not apply to any such losses, claims, damages, or liabilities or related expenses determined by a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or subjective bad faith of such Indemnified Person, -------- ------- Lessor and if such Indemnified Person is a director, officer, employee, Affiliate or agent of a Lender or the Agent, then, to the extent of such gross negligence, willful misconduct or subjective bad faith, such indemnity shall not apply to such Lender or the Agent, as applicable. If any litigation or proceeding is brought against any Indemnified Person in respect of which indemnity may be sought against Borrowers pursuant to this Section 2.22, such Indemnified Person shall promptly notify Borrowers in writing of the commencement of such litigation or proceeding, but the omission so to notify Borrowers shall not relieve Borrowers from any other obligation or liability which it may have to any Indemnified Person, except that no Borrower waives any rights for damages incurred by it on account of such delay. Failure of the Indemnified Person to timely notify Borrowers of the commencement of such litigation or proceeding shall not relieve Borrowers of their obligations under this Section 2.22, except where such failure irrevocably prejudices Borrowers' ability to defend such litigation or proceeding. In case any such litigation or proceeding shall be brought against any Indemnified Person and such Indemnified Person shall notify Borrowers of the commencement of such litigation or proceeding, Borrowers shall be entitled to participate Agent named in such litigation or proceeding andClaim, after written notice from Borrowers to such Indemnified Person, to assume the defense of such litigation or proceeding with counsel of its choice at its expense, provided that such counsel is satisfactory to the Indemnified Person in the exercise of its reasonable judgment. Notwithstanding the election of Borrowers to assume the defense of such litigation or proceeding, such Indemnified Person shall have the right to employ separate counsel and to participate in the defense of such litigation or proceeding, and Borrowers shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by Borrowers to represent such Indemnified Person would present such counsel with a conflict of interest; (ii) the defendants in, or targets of, any such litigation or proceeding include both an Indemnified Person and any Borrower, and such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to any Borrower (in which case Borrowers shall not have the right to direct the defense of such action on behalf of the Indemnified Person); (iii) Borrowers shall not have employed counsel satisfactory to such Indemnified Person in the exercise of the Indemnified Person's reasonable judgment to represent such Indemnified Person within a reasonable time after notice of the institution of such litigation or proceeding; or (iv) Borrowers shall authorize such Indemnified Person to employ each retain separate counsel at the expense of Borrowers, provided that Borrowers the Lessee in the event of and to the extent of a conflict or a potential conflict. The Lessee and each Indemnified Person agree to give each other prompt written notice of any Claim hereby indemnified against but the giving of any such notice by an Indemnified Person shall not be liable for the fees, costs and expenses of more than one separate counsel at the same time for all such Indemnified Persons in connection with the same action and any separate but substantially similar or related action in the same jurisdiction. Borrowers shall not consent a condition to the entry Lessee's obligations under this Section 12.1, except to the extent failure to give such notice materially prejudices Lessee's rights hereunder. After an Indemnified Person has been fully indemnified for a Claim pursuant to this Section 12.1, and so long as no Event of Default under the Lease shall have occurred and be continuing, the Lessee shall be subrogated to any judgment or enter into any settlement in any such litigation or proceeding unless such judgment or settlement includes as an unconditional term thereof the giving by the claimant or plaintiff to right of such Indemnified Person of a release from all liability in with respect to such claim Claim. None of the Indemnified Persons shall settle a Claim without the consent of the Lessee, which consent shall not be unreasonably withheld or litigation. The agreements of Borrowers in this Section 2.22 shall be in addition to any liability that Borrowers may otherwise have. All amounts due under this Section 2.22 shall be payable within ten (10) days of written demand therefordelayed.
Appears in 1 contract
Samples: Participation Agreement (Paragon Health Network Inc)
