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Common use of Indemnification by Borrower Clause in Contracts

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 9 contracts

Samples: Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.)

Indemnification by Borrower. (a) Whether or not In consideration of the transactions contemplated hereby are consummatedexecution and delivery of this Agreement by Agent and Lenders and the agreement to extend the Commitments provided hereunder, Borrower shall indemnify hereby agrees to indemnify, exonerate and hold harmless each Agent-Related Person, each Lender and their respective Affiliateseach of the officers, directors, officers, employees, counsel, agents, trustees, investment advisors Affiliates and attorneys-in-fact agents of Agent and each Lender (collectively the each a IndemniteesLender Party”) free and harmless from and against any and all liabilitiesactions, obligationscauses of action, suits, losses, taxesliabilities (including, without limitation, strict liabilities), damages, penaltiesfines, claimspenalties and expenses, demands, actions, judgments, suits, costs, expenses and disbursements including Legal Costs (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all casesincurred by Lender Parties or any of them as a result of, whether or not caused by arising out of, or arisingrelating to (a) any repayment of Debt, tender offer, merger, purchase of equity interests, purchase of assets or other similar or dissimilar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of the negligence Loan, (b) the generation, use, handling, recycling, reclamation, release, emission, discharge, transportation, storage, treatment or disposal of the Indemnitee and whether brought any Hazardous Substance at any property owned or leased by an IndemniteeBorrower or any other Loan Party, a third party (c) any violation of or liability under any Environmental Laws or any Environmental Claim with respect to conditions at any property owned or leased by any Loan Party or any Loan Party’s directorsthe operations conducted thereon, shareholders (d) the investigation, cleanup or creditors, and regardless remediation of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or offsite locations at which any Loan Party or their respective predecessors are alleged to have directly or indirectly released or disposed of Hazardous Substances and any liability for any specialrelated Environmental Claims or (e) the execution, punitivedelivery, indirect performance or consequential damages relating to enforcement of this Agreement or any other Loan DocumentDocument by any Lender Party, except to the extent any such Indemnified Liabilities result from the applicable Lender Party’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements Obligations provided for in this Section 10.05 10.5 shall survive repayment of the resignation Loan, cancellation of the Notes, any Agentforeclosure under, or any modification, release or discharge of, any or all of the replacement of any Lender, the Collateral Documents and termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimAgreement. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 7 contracts

Samples: Credit Agreement (PNG Ventures Inc), Credit Agreement (PNG Ventures Inc), Credit Agreement (Earth Biofuels Inc)

Indemnification by Borrower. (a) Whether or not In consideration of the transactions contemplated hereby are consummatedexecution and delivery of this Agreement by Agent and the Lender and the agreement to extend the Commitments provided hereunder, Borrower shall indemnify hereby agrees to indemnify, exonerate and hold harmless each Agent-Related Person, each the Lender and their respective Affiliateseach of the officers, directors, officers, employees, counsel, agents, trustees, investment advisors Affiliates and attorneys-in-fact agents of Agent and the Lender (collectively the each a IndemniteesLender Party”) free and harmless from and against any and all liabilitiesactions, obligationscauses of action, suits, losses, taxesliabilities (including, without limitation, strict liabilities), damages, penaltiesfines, claimspenalties and expenses, demands, actions, judgments, suits, costs, expenses and disbursements including Legal Costs (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), incurred by Lender Parties or asserted against the Lender Party by any Person (including in all casesconnection with any action, whether suit or not caused proceeding brought by the Borrower, any other Group Member or arisingany Lender Party) as a result of, or arising out of, or relating to (a) any repayment of Debt, tender offer, merger, purchase of Stock and Stock Equivalents, purchase of assets or other similar or dissimilar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of the negligence Loans, (b) the generation, use, handling, recycling, reclamation, release, emission, discharge, transportation, storage, treatment or disposal of the Indemnitee and whether brought any Hazardous Substance at any property owned or leased by an IndemniteeBorrower or any other Group Member, a third party (c) any violation of or liability under any Environmental Laws or any Environmental Claim with respect to conditions at any property owned or leased by any Loan Party Group Member or the operations conducted thereon, (d) the investigation, cleanup or remediation of offsite locations at which any Loan Party’s directorsGroup Member or their respective predecessors are alleged to have directly or indirectly released or disposed of Hazardous Substances and any related Environmental Claims or (e) the execution, shareholders delivery, performance or creditors, and regardless enforcement of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument by any Lender Party, except to the extent any such Indemnified Liabilities result from the applicable Lender Party’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements Obligations provided for in this Section 10.05 10.5 shall survive repayment of the resignation Loans, cancellation of the Notes, any Agentforeclosure under, or any modification, release or discharge of, any or all of the replacement of any Lender, the Collateral Documents and termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimAgreement. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 5 contracts

Samples: Credit Agreement (Merus Labs International Inc.), Credit Agreement (PDL Biopharma, Inc.), Credit Agreement (Merus Labs International Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify the Administrative Agent (and hold harmless each Agentany sub-Related Personagent thereof), the Collateral Agent (and any sub-agent thereof) each Lender and their respective Affiliatesthe Issuing Bank, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact each Related Party of any of the foregoing persons (collectively the each such person being called an IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities and related expenses (including the fees, claims, demands, actions, judgments, suits, costs, expenses charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)for any Indemnitee) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to party hereto or any third party arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, deliveryany other Loan Document, enforcement, performance or administration of any Loan Document or any other agreementamendment, letter amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Commitment Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release Release or threatened Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by any Loan PartyCompany at any time, or any Environmental Liability Claim related in any way to any Loan Party Company, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party Borrower or any other Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, of such Indemnitee or material (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan Party has obtained a final and nonappealable judgment in its obligations under the Loan Documents by, favor on such Indemnitee claim as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 4 contracts

Samples: Credit Agreement (CSG Systems International Inc), Credit Agreement (CSG Systems International Inc), Credit Agreement (CSG Systems International Inc)

Indemnification by Borrower. (a) Whether or not In consideration of the transactions contemplated hereby are consummatedexecution and delivery of this Agreement by Agent and Lenders and the agreement to extend the Commitments provided hereunder, Borrower shall indemnify hereby agrees to indemnify, exonerate and hold harmless each Agent-Related Person, each Lender and their respective Affiliateseach of the officers, directors, officers, employees, counsel, agents, trustees, investment advisors Affiliates and attorneys-in-fact agents of Agent and each Lender (collectively the each a IndemniteesLender Party”) free and harmless from and against any and all liabilitiesactions, obligationscauses of action, suits, losses, taxesliabilities, damagesdamages and expenses, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements including Legal Costs (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all casesincurred by Lender Parties or any of them as a result of, whether or not caused by arising out of, or arisingrelating to any Loan Party or any of their respective officers, directors or agents, including, without limitation, (a) any tender offer, merger, purchase of equity interests, purchase of assets or other similar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of any of the negligence Loans, (b) the use, handling, release, emission, discharge, transportation, storage, treatment or disposal of the Indemnitee and whether brought any Hazardous Substance at any property owned or leased by an IndemniteeBorrower or any other Loan Party, a third party (c) any violation of any applicable Environmental Laws with respect to conditions at any property owned or leased by any Loan Party or any Loan Party’s directorsthe operations conducted thereon, shareholders (d) the investigation, cleanup or creditors, and regardless remediation of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or offsite locations at which any Loan Party or their respective predecessors are alleged to have any liability for any specialdirectly or indirectly disposed of Hazardous Substances, punitive(e) the execution, indirect delivery, performance or consequential damages relating to enforcement of this Agreement or any other Loan DocumentDocument by any Lender Party, except to the extent any such Indemnified Liabilities result solely from the applicable Lender Party’s own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction in a non-appealable judgment, or (f) such Person’s general operation of its business including all product liability out of or in connection with such Person’s or any of its Affiliates or licensees manufacture use or sale of a Product or the provision of a Service. If and to the extent that the foregoing undertaking may be unenforceable for any reason, Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements Obligations provided for in this Section 10.05 10.5 shall survive repayment of the resignation Loans, cancellation of the Notes, any Agentforeclosure under, or any modification, release or discharge of, any or all of the replacement of any Lender, the Collateral Documents and termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligationsthis Agreement. Notwithstanding the foregoing, this Section 10.05(a) 10.5 shall not apply with respect to Taxes other than any Taxes that represent losses or damages losses, claims, damages, etc. arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 3 contracts

Samples: Credit Agreement (Acer Therapeutics Inc.), Credit Agreement (Acer Therapeutics Inc.), Credit Agreement (Biotricity Inc.)

Indemnification by Borrower. (a) Whether or not To the transactions contemplated hereby are consummatedfullest extent permitted by law, the Borrower shall indemnify and agrees to indemnify, hold harmless and defend the Issuer, the program participants of the Issuer, the Trustee, Bondholders, Servicer, and Financial Monitor, and each Agent-Related Person, each Lender and of their respective Affiliatesofficers, governing members, directors, officersofficials, employees, counsel, agents, trustees, investment advisors attorneys and attorneys-in-fact agents (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified LiabilitiesParties”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to: (i) the Bonds, the Indenture, the Loan Agreement, the Regulatory Agreement, the Loan Documents or the Tax Certificate or the execution or amendment hereof or thereof or in connection with transactions contemplated hereby or thereby, including the issuance, sale or resale of the Bonds; (ii) any act or omission of the Borrower or any of its agents, contractors, servants, employees or licensees in connection with the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or any part thereof; (iii) any lien or charge upon payments by the Borrower to the Issuer and the Trustee, Bondholders, Servicer, and Financial Monitor hereunder, or any taxes (including, without limitation, all casesad valorem taxes and sales taxes), whether assessments, impositions and other charges imposed on the Issuer or not caused by the Trustee, Bondholders, Servicer, and Financial Monitor in respect of any portion of the Project; (iv) any violation of any environmental regulations with respect to, or arisingthe release of any hazardous substances from, the Project or any part thereof; (v) the defeasance and/or redemption, in whole or in part, out of the negligence Bonds; (vi) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in any offering statement or disclosure or continuing disclosure document for the Indemnitee and whether brought by an Indemnitee, a third party Bonds or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummateddocuments relating to the Bonds, or any omission or alleged omission from any offering statement or disclosure or continuing disclosure document for the Bonds of any material fact necessary to be stated therein in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; (vii) any declaration of taxability of interest on the Bonds, or allegations (or regulatory inquiry) that interest on the Bonds is taxable, for federal tax purposes; (viii) the Subordinate Loan Documents and/or the Partnership Agreement; provided that such indemnity shall notand (ix) the Trustee’s, as Bondholders’, Servicer’s, and Financial Monitor’s acceptance or administration of the trust of the Indenture, or the exercise or performance of any of its powers or duties thereunder or under any of the documents relating to the Bonds to which it is a party; except (a) in the case of the foregoing indemnification of the Trustee, Bondholders, Servicer, and Financial Monitor or any Indemniteesof its respective officers, be available members, directors, officials, employees, attorneys and agents, to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses damages are caused by the negligence or disbursements resulted from the gross negligence, willful misconduct ofof such Indemnified Party; or (b) in the case of the foregoing indemnification of the Issuer or the program participants of the Issuer or any of their officers, or material breach in bad faith of its obligations under the Loan Documents bymembers, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdictiondirectors, officials, employees, attorneys and except agents, to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any such damages arising from are caused by the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release willful misconduct of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) Indemnified Party. In the event that an Indemnitee any action or proceeding is requested brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or required settle the same in its sole discretion; provided that the Indemnified Party shall have the right to appear as a witness review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates proceeding and participate in which such Indemnitee is not named as a defendantthe investigation and defense thereof, and the Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, pay the reasonable fees and expenses of its legal such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the Borrower if in the judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel. In addition thereto, the Borrower will pay upon demand all of the fees and expenses paid or incurred by the Trustee, Bondholders, Servicer, and Financial Monitor and/or the Issuer in enforcing the provisions hereof, as more fully set forth in the Loan Agreement. (b) The rights of any persons to indemnity hereunder and rights to payment of fees and reimbursement of expenses pursuant this Loan Agreement shall survive the final payment or defeasance of the Bonds and in the case of the Trustee, Bondholders, Servicer, and Financial Monitor any resignation or removal. The provisions of this Section shall survive the termination of this Loan Agreement.

Appears in 3 contracts

Samples: Loan Agreement, Loan Agreement, Loan Agreement

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify agrees to indemnify, save and hold harmless each Agent-Related Person, each Lender and their its respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against against: (i) any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actionsactions or causes of action that are asserted against any Indemnitee by any Person relating directly or indirectly to a claim, judgmentsdemand, suitsaction or cause of action that such Person asserts or may assert against Borrower, costsGuarantor or any Affiliate of Borrower or Guarantor; (ii) any and all claims, expenses and disbursements (including counsel to the Administrative Agent and the Lendersdemands, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event actions or causes of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which action that may at any time (including at any time following repayment of the Obligations) be asserted or imposed on, incurred by or asserted against any such Indemnitee in any way relating to or Indemnitee, arising out of or in connection with (i) relating to, the executionLoan Documents, deliveryany predecessor loan documents, enforcementthe Loans, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed contemplated use of the proceeds therefromof the Loans, or the relationship of Borrower, Guarantor and Lender under this Agreement or any other Loan Document; (iii) any actual administrative or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated investigative proceeding by any Loan Party, Governmental Authority arising out of or any Environmental Liability related to any Loan Party or (iv) any actual or prospective a claim, litigationdemand, investigation action or proceeding relating to any cause of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing action described in clauses (i) to or (ii) above; and (iv) any and all liabilities (including liabilities under indemnities), collectivelylosses, costs or expenses (including, without limitation, Attorney Costs) that any Indemnitee suffers or incurs as a result of the “Indemnified Liabilities”)assertion of any foregoing claim, demand, action, cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action, cause of action or proceeding, in all cases, whether or not caused by or arising, in whole or in part, arising out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party and whether or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any not an Indemnitee is a party thereto and whether to such claim, demand, action, cause of action or not any of the transactions contemplated hereby are consummatedproceeding; provided that such indemnity no Indemnitee shall not, as be entitled to indemnification for any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the claim caused by its own gross negligence, bad faith or willful misconduct ofor for any loss asserted against it by another Indemnitee, or material for any claim caused by Lender’s breach in bad faith of its obligations under the Loan Documents by, (and in such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among event only if Borrower shall prevail in any Lenders in their capacity as suchsuch finally adjudicated litigation). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due in respect of costs, expenses and disbursements under this Section 10.05 8.5 shall be paid payable within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereoftherefore. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge repayment of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 2 contracts

Samples: Revolving Loan Agreement (Viggle Inc.), Term Loan Agreement (Viggle Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummatedThe Borrower agrees to pay, Borrower shall indemnify defend, protect, indemnify, save and hold harmless the Issuer, the Purchaser and each Agent-Related Personaffiliate, member, officer, director, official, employee and agent of the Issuer and the Purchaser and each Lender person, if any, who controls any of the foregoing within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (referred to herein as an “Indemnified Party” and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively as the “IndemniteesIndemnified Parties) from and ), against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel reasonable attorneys’ fees), causes of action (whether in contract, tort or otherwise), suits, claims, demands and judgments of any kind, character and nature (collectively referred to herein as the “Liabilities”) caused by or directly or indirectly arising from or in any way relating to the Administrative Agent and Bonds, the LendersProject, and the loan of the proceeds of the Bonds, the Loan Agreement, the Indenture, this Agreement or any document related to the extent reasonably necessaryBonds, local counsel the Project, the loan of the proceeds of the Bonds (the “Transaction Documents”) or any transaction or agreement, written or oral, pertaining to the foregoing; provided, however, that the Borrower shall not be required to indemnify, save or hold harmless an Indemnified Party for losses caused by the gross negligence or the willful misconduct of the Indemnified Party. (b) The Borrower also agrees to pay, defend, protect, indemnify, save and hold harmless the Purchaser and each affiliate, member, officer, director, official, employee and agent of the Purchaser from and against the Liabilities directly or indirectly arising from or relating to (i) any errors or omissions of any nature whatsoever contained in any relevant jurisdiction legal proceedings or other official representation or inducement made by the Issuer pertaining to the Bonds and (andii) any fraud or misrepresentations or omissions contained in the proceedings of the Issuer pertaining to the financial condition of the Borrower. (c) The Indemnified Party shall, in the event of any actual claim, suit, action or proceeding against it with respect to which indemnity may be sought on account of any indemnity agreement by the Borrower contained herein, promptly give written notice thereof to the Borrower. When such notice is given, the Borrower shall be entitled to participate, at its own expense, in the defense of, or if it so elects, to assume the defense of, such claim, suit, action or proceeding, in which event such defense shall be conducted by counsel chosen by the Borrower, provided that each Indemnified Party shall have the right to review and approve or disapprove any compromise or settlement which approval shall not be unreasonably withheld. If the Borrower shall elect not to assume such defense, it shall assume the payment of all expenses related thereto. Notwithstanding the above, each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, provided that the Borrower shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and the Borrower and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional counsel to those available to the affected parties)Borrower, (iii) the Borrower shall not have employed counsel satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower shall authorize the Indemnified Party to employ separate counsel at the expense of the Borrower. Each and every Indemnified Party shall have the right to compromise, settle or conclude any kind claim, action or nature whatsoever proceeding against it with the written consent of the Borrower, which may at consent shall not be unreasonably withheld. The foregoing notwithstanding, in the event that the Borrower shall assume such defense and any time Indemnified Party or Parties shall be imposed onadvised by independent legal counsel that counsel selected by the Borrower is not fully and adequately protecting such party or parties and representing the interests of such party or parties and the Borrower has been given written notice thereof and a reasonable opportunity to cure or find other counsel acceptable to the Indemnified Parties, incurred by any such Indemnified Party or asserted Parties shall have the right to conduct its own defense against any such Indemnitee claim, suit, action or proceeding in any way relating addition to or in lieu of any defense conducted by the Borrower, and the Indemnifying Party shall indemnify and hold harmless such Indemnified Party or Parties against and from any and all suits, claims, damages, liabilities or expenses whatsoever, including reasonable fees and expenses of counsel selected by such Indemnified Party or Parties incurred by and arising out of or in connection with any such claim, suit, action or proceeding. (id) In order to provide for just and equitable contribution in circumstances in which the executionindemnity provided for in paragraph (a) or (b) of this Section 11 is for any reason held to be unavailable, deliverythe Borrower and the Indemnified Party shall contribute proportionately to the aggregate Liabilities to which the Borrower and the Indemnified Party may be subject, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered so that the Indemnified Party is responsible for that portion represented by the percentage that the fees paid by the Borrower to the Indemnified Party in connection with the transactions contemplated thereby or the consummation issuance and administration of the transactions contemplated thereby, (ii) any Commitment or Loan or Bonds bear to the use or proposed use aggregate offering price of the proceeds therefromBonds, (iii) with the Borrower responsible for the balance; provided, however, that in no case shall the Indemnified Party be responsible for any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any amount in excess of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of fees paid by the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available Borrower to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems Indemnified Party in connection with the issuance and administration of the Bonds. (e) The Indemnified Parties, other than the Issuer and the Purchaser, shall be considered to be third party beneficiaries of this Agreement for purposes of this Section 11. The provisions of this Section 11 will be in addition to all liability which the Borrower may otherwise have and shall survive any termination of this Agreement, nor the offering and sale of the Bonds and the payment or provisions for payment of the Bonds. No person guilty of fraudulent misrepresentation (within the meaning of Section 10(b) of the Securities Exchange Act of 1934) shall be entitled to contribution from any Indemnitee or person who was not guilty of such misrepresentation. (f) The indemnification hereunder shall be in addition to, and shall not limit, any indemnity granted by the Borrower pursuant to the Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimdocument. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 2 contracts

Samples: Bond Purchase Agreement, Bond Purchase Agreement

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Term Loan Commitment or the Term Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 2 contracts

Samples: Senior Secured Credit Agreement (NXT-Id, Inc.), Senior Secured Credit Agreement (NXT-Id, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummatedThe Loan Parties, Borrower jointly and severally, shall indemnify the Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), the Arrangers and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Personfrom, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements and out-of-pocket fees and expenses (including the fees, charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)counsel) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by the Borrower or any other Loan Party arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, deliveryany other Loan Document, enforcement, performance or administration of any Loan Document or any other agreementamendment, letter amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby, thereby, or related thereto or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release Release or threatened Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Borrower or any Loan Partyof its Restricted Subsidiaries at any time, or any Environmental Liability related in any way to the Borrower or any Loan Party of its Restricted Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party the Borrower or any other Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, bad faith, material breach or willful misconduct ofof such Indemnitee or a Related Party thereof, or material breach (y) disputes solely among Indemnitees not involving any act or omission of any Loan Party or any of their respective Related Parties (other than a dispute against the Administrative Agent, Collateral Agent or any Arranger in bad faith of its obligations under their capacities as such); provided, further, that the Loan Documents byParties shall not be required to reimburse the legal fees and expenses of more than one counsel (in addition to one special counsel in each specialty area, such Indemnitee as determined up to one local counsel in each applicable local jurisdiction and any additional counsel for an Indemnified Party reasonably deemed appropriate by a final non-appealable judgment virtue of a court potential conflicts of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems interests incurred in connection with this Agreementinvestigating, nor shall defending or preparing to defend any Indemnitee such action, suit, proceeding (including any inquiry or investigation) or claim (whether or not any Loan Party have Agent, any liability for any special, punitive, indirect or consequential damages relating to this Agreement Lender or any other Loan Document. All amounts due in respect such Indemnified Party is a party to any action or proceeding out of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving which any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofexpenses arise)). The agreements in this This Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses losses, claims, damages, or damages liabilities arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (MKS Instruments Inc), Term Loan Credit Agreement (MKS Instruments Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify Bank, Bank’s affiliates and hold harmless each Agent-Related Person, each Lender its and their respective Affiliatespartners, directors, officers, employees, counselrepresentatives, agents, trustees, investment trustees and advisors and attorneys-in-fact (collectively the each such Person being called an IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities, claims, demands, actions, judgments, suits, costs, penalties and related expenses and disbursements (including counsel the reasonable and documented fees, charges and expenses of counsel, which shall be limited to the Administrative Agent reasonable and the Lendersdocumented fees, charges and to the extent reasonably necessary, expenses of one outside counsel and one local counsel in any relevant jurisdiction (each applicable jurisdiction, as necessary, and, in the event case of any an actual or perceived conflict of interest, additional conflicts counsel to the affected partiesfor any Indemnitee)) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by Borrower or any other Loan Party arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under any toxic substance or hazardous waste on or from any property currently or formerly owned or operated by Borrower or any Loan Partyof its Subsidiaries, or any Environmental Liability environmental liability related in any way to Borrower or any Loan Party of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by Borrower or any other Loan Party or any of Borrower's or such Loan Party’s 's directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct ofof such Indemnitee, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as (y) are determined by a final non-appealable judgment of a court of competent jurisdiction, jurisdiction by final and except nonappealable judgment to the extent resulting have resulted from claims a dispute among or between Indemnitees and not involving any act or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others omission of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement Borrower or any other Loan Document. All amounts due in respect Party; provided further that payments of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement the negotiation, preparation, due diligence, administration, syndication, closing and enforcement of any Proceedings effected without its consent (which consent shall not of the Loan Documents will be unreasonably withheld or delayedlimited to those provided for under Section 8.3(a), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 2 contracts

Samples: Credit Agreement (Antero Midstream GP LP), Credit Agreement

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify agrees to indemnify, defend and hold harmless each Agent-Related PersonPersons, and each Lender Bank and their each of its respective Affiliatesofficers, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, charges, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and Letter of Credit Obligations and the termination, resignation or replacement of Agent or replacement of any Bank) be imposed on, incurred by or asserted against any such Indemnitee 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 (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or including with respect to any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding (including any insolvency proceeding or appellate proceeding) (any related to or arising out of this Agreement, the Loans, the Letter of Credit Obligations or the use of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all casesproceeds thereof, whether or not caused by any Indemnified Person is a party thereto including (i) any tender offer, merger, purchase of stock, purchase of assets or arising, other similar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall notLoans, as to (ii) any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses violation or disbursements resulted from the gross negligence, willful misconduct alleged violation of, or material breach in bad faith failure or alleged failure to comply with, any federal or state securities Laws, including the Securities Act of its obligations under 1933 and/or the Loan Documents bySecurities Exchange Act of 1934, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction(iii) the use, and except to the extent resulting from claims between handling, release, emission, discharge, transportation, storage, treatment or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others disposal of any information Hazardous Substance at any property owned or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee leased by Borrower or any Loan Party have Subsidiary, (iv) any liability for violation of any special, punitive, indirect Environmental Laws with respect to conditions at any property owned or consequential damages relating to this Agreement leased by Borrower or any other Loan Document. All amounts due in respect Subsidiary or the operations conducted thereon, (v) the investigation, cleanup or remediation of costsoffsite locations at which Borrower or any Subsidiary or their respective predecessors are alleged to have directly or indirectly disposed of Hazardous Substances (all the foregoing, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand thereforcollectively, the "Indemnified Liabilities"); provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee Borrower shall not be entitled thereto pursuant have any obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the provisions hereofgross negligence or willful misconduct of such Indemnified Person. The agreements in this Section 10.05 11.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge payment of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Loan and Security Agreement (Gsi Group Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify Administrative Agent (and any sub-agent thereof), Collateral Agent (and any sub-agent thereof) each Lender, and each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Personfrom, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities and related out-of-pocket expenses (including, claimswithout limitation, demandsreasonable fees, actionsdisbursements and other charges of counsel (but limited, judgmentsin the case of legal fees and expenses, suitsto the reasonable and documented out-of-pocket fees, costs, expenses disbursements and disbursements (including other charges of one counsel to the Administrative Agent and the Lendersall Indemnitees taken as a whole and, and to the extent if reasonably necessary, a single local counsel 38669945_32 for all Indemnitees taken as a whole in any each relevant jurisdiction (andjurisdiction, and solely in the event case of any actual a conflict of interest, one additional counsel in each relevant jurisdiction to the each group of affected partiesIndemnitees similarly situated taken as a whole)) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to party hereto or any third party arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, deliveryany other Loan Document, enforcement, performance or administration of any Loan Document or any other agreementamendment, letter amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release Release or threatened Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by any Loan PartyCompany at any time, or any Environmental Liability Claim related in any way to any Loan Party Company, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party Borrower or any other Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct ofof such Indemnitee, (y) result from a claim brought by Borrower or material any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan Party has obtained a final and nonappealable judgment in its obligations under the Loan Documents by, favor on such Indemnitee claim as determined by a court of competent jurisdiction or (z) result from any dispute solely among Indemnitees other than any claims against an Indemnitee in its capacity or in fulfilling its role as an administrative agent or arranger or any similar role under this Agreement and other than any claims arising out of any act or omission of the Borrower or any of its Affiliates (as determined in a final and non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this This Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a10.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses losses, claims or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Norcraft Companies, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Credit Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment or Commitment, Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (ivc) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of (all the transactions contemplated hereby are consummatedforegoing, collectively, the "Borrower Indemnified Liabilities"); provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available (y) to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee and (z) with respect to a dispute among two or more Indemnitees which does not arise as determined by a final non-appealable judgment result of a court the action or inaction of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchBorrower. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any IntraLinks or other similar information transmission systems in connection with this Credit Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Credit Agreement or any other Loan Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). Nothing contained in this Section 8.5 shall be deemed to restrict the Borrower's right to pursue any and all legal remedies available to the Borrower for breach of any representation, covenant, warranty or other agreement set forth in any Credit Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 8.5 shall be paid payable within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any the Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Sonoco Products Co)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify agrees to indemnify, save and hold harmless each Agent-Related Person, each Lender Bank and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against against: (a) any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event actions or causes of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or action that are asserted against any Indemnitee by any Person (other than the Administrative Agent, the Syndication Agent or any Bank) relating directly or indirectly to a claim, demand, action or cause of action that such Indemnitee in Person asserts or may assert against Borrower, any way relating to Affiliate of Borrower or arising any of their respective officers or directors which arises out of or in connection with (i) the executionLoan Documents, delivery, enforcement, performance the use of Loan proceeds or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, ; (iib) any Commitment and all claims, demands, actions or causes of action that may at any time (including at any time following repayment of the Obligations and the resignation or removal of the Administrative Agent or the replacement of any Bank) be asserted or imposed against any Indemnitee, arising out of or relating to, the Loan or Documents, any predecessor loan documents, the Commitments, the use or proposed contemplated use of the proceeds therefrom, (iii) of any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan PartyLoan, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claimthe relationship of Borrower, litigationthe Administrative Agent, investigation or proceeding relating to any of the foregoing, whether based on contract, tort Syndication Agent and the Banks under this Agreement or any other theory Loan Document; (c) any administrative or investigative proceeding by any Governmental Agency arising out of or related to a claim, demand, action or cause of action described in subsection (a) or (b) above; and (d) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including, without limitation, attorney’s fees and disbursements and the allocated cost of inhouse counsel) that any investigation ofIndemnitee suffers or incurs as a result of the assertion of any foregoing claim, preparation fordemand, action, cause of action or proceeding, or defense as a result of the preparation of any pending or threatened defense in connection with any foregoing claim, investigationdemand, litigation action, cause of action or proceeding) (any , and whether or not an Indemnitee is a party to such claim, demand, action, cause of the foregoing described in this clause (iv), a “Proceeding”) action or proceeding (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No no Indemnitee shall be liable entitled to indemnification for any damages arising from the use claim caused by others of any information its own negligence or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee willful misconduct or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofloss asserted against it by another Indemnitee. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge repayment of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Revolving Credit Agreement (Avery Dennison Corporation)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with BorrowerXxxxxxxx’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower Xxxxxxxx shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Senior Secured Credit Agreement (Bright Mountain Media, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummatedThe Borrower agrees to pay, Borrower shall indemnify defend, protect, indemnify, save and hold harmless the Issuer, the Purchaser and each Agent-Related Personaffiliate, member, officer, director, official, employee and agent of the Issuer and the Purchaser and each Lender person, if any, who controls any of the foregoing within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (referred to herein as an “Indemnified Party” and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively as the “IndemniteesIndemnified Parties) from and ), against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel reasonable attorneys’ fees), causes of action (whether in contract, tort or otherwise), suits, claims, demands and judgments of any kind, character and nature (collectively referred to herein as the “Liabilities”) caused by or directly or indirectly arising from or in any way relating to the Administrative Agent and Bonds, the LendersProject, and the loan of the proceeds of the Bonds, the Loan Agreement, the Indenture, this Agreement or any document related to the extent reasonably necessaryBonds, local counsel the Project, the loan of the proceeds of the Bonds (the “Transaction Documents”) or any transaction or agreement, written or oral, pertaining to the foregoing; provided, however, that the Borrower shall not be required to indemnify, save or hold harmless an Indemnified Party for losses caused by the gross negligence or the willful misconduct of the Indemnified Party. (b) The Borrower also agrees to pay, defend, protect, indemnify, save and hold harmless the Purchaser and each affiliate, member, officer, director, official, employee and agent of the Purchaser from and against the Liabilities directly or indirectly arising from or relating to (i) any errors or omissions of any nature whatsoever contained in any relevant jurisdiction legal proceedings or other official representation or inducement made by the Issuer pertaining to the Bonds and (andii) any fraud or misrepresentations or omissions contained in the proceedings of the Issuer pertaining to the financial condition of the Borrower. (c) The Indemnified Party shall, in the event of any actual claim, suit, action or proceeding against it with respect to which indemnity may be sought on account of any indemnity agreement by the Borrower contained herein, promptly give written notice thereof to the Borrower. When such notice is given, the Borrower shall be entitled to participate, at its own expense, in the defense of, or if it so elects, to assume the defense of, such claim, suit, action or proceeding, in which event such defense shall be conducted by counsel chosen by the Borrower, provided that each Indemnified Party shall have the right to review and approve or disapprove any compromise or settlement which approval shall not be unreasonably withheld. If the Borrower shall elect not to assume such defense, it shall assume the payment of all expenses reasonably incurred and related thereto. Notwithstanding the above, each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, provided that the Borrower shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Borrower to represent the Indemnified Party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the Indemnified Party and the Borrower and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Parties that are different from or additional counsel to those available to the affected parties)Borrower, (iii) the Borrower shall not have employed counsel satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of the institution of such action, or (iv) the Borrower shall authorize the Indemnified Party to employ separate counsel at the expense of the Borrower. Each and every Indemnified Party shall have the right to compromise, settle or conclude any kind claim, action or nature whatsoever proceeding against it with the written consent of the Borrower, which may at consent shall not be unreasonably withheld. The foregoing notwithstanding, in the event that the Borrower shall assume such defense and any time Indemnified Party or Parties shall be imposed onadvised by independent legal counsel that counsel selected by the Borrower is not fully and adequately protecting such party or parties and representing the interests of such party or parties and the Borrower has been given written notice thereof and a reasonable opportunity to cure or find other counsel acceptable to the Indemnified Parties, incurred by any such Indemnified Party or asserted Parties shall have the right to conduct its own defense against any such Indemnitee claim, suit, action or proceeding in any way relating addition to or in lieu of any defense conducted by the Borrower, and the Indemnifying Party shall indemnify and hold harmless such Indemnified Party or Parties against and from any and all suits, claims, damages, liabilities or reasonable expenses whatsoever, including reasonable fees and expenses of counsel selected by such Indemnified Party or Parties incurred by and arising out of or in connection with any such claim, suit, action or proceeding. (id) In order to provide for just and equitable contribution in circumstances in which the executionindemnity provided for in paragraph (a) or (b) of this Section 11 is for any reason held to be unavailable, deliverythe Borrower and the Indemnified Party shall contribute proportionately to the aggregate Liabilities to which the Borrower and the Indemnified Party may be subject, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered so that the Indemnified Party is responsible for that portion represented by the percentage that the fees paid by the Borrower to the Indemnified Party in connection with the transactions contemplated thereby or the consummation issuance and administration of the transactions contemplated thereby, (ii) any Commitment or Loan or Bonds bear to the use or proposed use aggregate offering price of the proceeds therefromBonds, (iii) with the Borrower responsible for the balance; provided, however, that in no case shall the Indemnified Party be responsible for any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any amount in excess of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of fees paid by the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available Borrower to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems Indemnified Party in connection with the issuance and administration of the Bonds. (e) The Indemnified Parties, other than the Issuer and the Purchaser, shall be considered to be third party beneficiaries of this Agreement for purposes of this Section 11. The provisions of this Section 11 will be in addition to all liability which the Borrower may otherwise have and shall survive any termination of this Agreement, nor the offering and sale of the Bonds and the payment or provisions for payment of the Bonds. No person guilty of fraudulent misrepresentation (within the meaning of Section 10(b) of the Securities Exchange Act of 1934) shall be entitled to contribution from any Indemnitee or person who was not guilty of such misrepresentation. (f) The indemnification hereunder shall be in addition to, and shall not limit, any indemnity granted by the Borrower pursuant to the Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimdocument. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Subordinate Bond Purchase Agreement

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify indemnify, defend and hold harmless each Agent-Related PersonPersons and each Bank, and each Lender and of their respective Affiliatesofficers, directors, officersemployees and agents (each, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”an "Indemnified Person") harmless from and against against: (i) any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, costs and expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)legal fees) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or Person arising out of or relating to (A) the Line of Credit, the Bid Loan Facility, Advances under the Loan Documents, Letters of Credit or the Loan Documents or any document or transaction or action taken or not by any such Person in connection with (i) any of the foregoing, including but not limited to the execution, delivery, enforcement, performance or and administration of any this Agreement and the other Loan Document Documents, or any other agreement, letter or instrument delivered in connection with (B) the transactions contemplated thereby hereby, including any investigation, arbitration, litigation, Insolvency Proceeding or other proceeding thereto related to this Agreement or the consummation other Loan Documents, the Line of Credit, the Bid Loan Facility, Letters of Credit, Advances under the Loan Documents or the use of the transactions contemplated therebyproceeds thereof (including, without limitation, any investigation, litigation or proceeding related to the acquisition by any Borrower Entity or Joint Venture Entity of all or any portion of its assets), whether or not any Indemnified Person is a party; and (ii) any Commitment or Loan or the use or proposed use of the proceeds therefromand all writs, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penaltiessubpoenas, claims, demands, actions, judgmentsor causes of action that are served on or asserted against any Indemnified Person (if directly or indirectly related to a writ, suitssubpoena, claim, demand, action, or cause of action against Borrower or any Affiliate of Borrower); and any and all liabilities, losses, costs, or expenses (including attorneys' fees) that any Indemnified Person suffers or disbursements resulted incurs as a result of any of said matters; (all the foregoing, collectively, the "Indemnified Liabilities"); provided, that Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the gross negligence, negligence or willful misconduct of, or material breach of such Indemnified Person; nor shall Borrower have any obligation to indemnify any Designating Bank in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others respect of any information matter with respect to which Borrower is entitled to be indemnified pursuant to Section 11.5 or other materials obtained through in respect of any information transmission systems in connection with this Agreement, nor shall any Indemnitee act or any Loan Party have any liability for any special, punitive, indirect omission by such Designating Bank or consequential damages relating to this its Designated Bid Lender under their Designation Agreement or any other Loan Document. All amounts due agreement entered into between them in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimconnection therewith. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed)further indemnify Agent, but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify each Bank and each Designated Bid Lender from and hold it harmless each Indemnitee from and against any Indemnified Liabilities in accordance with transfer or documentary taxes, assessments or charges imposed by any governmental authority by reason of the foregoing clause (a). Borrower shall notexecution, without delivery and performance of the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisionsLoan Documents. (c) In Borrower's obligations under this Section 2.3 shall survive payment of all other Obligations, and shall inure to the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf benefit of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendantAgent's, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing Banks' and preparing to appear as such a witness, including without limitation, the reasonable fees Designated Bid Lenders' successors and expenses of its legal counselassigns.

Appears in 1 contract

Samples: Unsecured Line of Credit Loan Agreement (Bre Properties Inc /Md/)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Personfrom, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities and related expenses (including the fees, claimscharges, demandsout-of-pocket expenses, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional outside counsel to the affected partiesfor any Indemnitee)) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by Borrower or any of its Subsidiaries arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, or the consummation of the transactions contemplated hereby or thereby, or, in the case of Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower or any Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to Borrower or any Loan Party of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party Borrower or any Loan Party’s directors, shareholders or creditors, of its Subsidiaries and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedIN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee or (y) result from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action claim brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such against an Indemnitee for all reasonable expenses incurred by it breach in connection with bad faith of such Indemnitee’s appearing obligations hereunder or under any other Loan Document, if Borrower or such Subsidiary has obtained a final and preparing to appear nonappealable judgment in its favor on such claim as such determined by a witness, including without limitation, the reasonable fees and expenses court of its legal counselcompetent jurisdiction.

Appears in 1 contract

Samples: Credit Agreement (RigNet, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, The Borrower shall agrees to indemnify and hold harmless each Agent-Related Personthe Lender, each Lender and their respective Affiliatesas well as its shareholders, directors, officers, employees, counsel, agents, trusteesattorneys, investment advisors subsidiaries and attorneys-in-fact (collectively the “Indemnitees”) affiliates, from and against any and all liabilitiesdamages, losses, settlement payments, obligations, lossesliabilities, taxesclaims, damagessuits, penalties, claimsassessments, citations, directives, demands, actions, judgments, suitsactions or causes of action, costswhether statutorily created or under the common law, all reasonable out-of-pocket costs and expenses (including, without limitation, reasonable fees and disbursements (including counsel to the Administrative Agent of attorneys, engineers and the Lenders, consultants) and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature all other liabilities whatsoever which may shall at any time or times be imposed onincurred, incurred suffered, sustained or required to be paid by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with indemnified Person (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (except any of the foregoing described which result from (x) the gross negligence, bad faith or willful misconduct of the indemnified Person or any of its Affiliates, (y) a material breach of such indemnified Person’s or any of its Affiliates’ obligations under the Loan Documents or (z) arose from any dispute solely among indemnified Persons, other than claims against an indemnified Person in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole its capacity or in part, fulfilling its role as an agent or arranger or any similar role under the Loan Documents and other than any claims arising out of any act or omission on the negligence part of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any of its Affiliates) on account of or in relation to or any way in connection with any of the arrangements or transactions contemplated by, associated with or ancillary to this Agreement, the other Loan Party’s directorsDocuments or any other documents executed or delivered in connection herewith or therewith, shareholders or creditorsall as the same may be amended from time to time, and regardless of whether any Indemnitee is a party thereto and whether or not any all or part of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except associated with or ancillary to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee of the other Loan Documents or any Loan Party have such other documents are ultimately consummated. In any liability for any specialinvestigation, punitiveproceeding or litigation, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due the preparation therefor, the Lender shall select its own counsel and, in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts addition to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agentforegoing indemnity, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect Borrower agrees to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, pay promptly the reasonable fees and expenses of such counsel. In the event of the commencement of any such proceeding or litigation, the Borrower shall be entitled to participate in such proceeding or litigation with counsel of its legal counselchoice at its own expense. The Borrower authorizes the Lender to charge any deposit account or Note Record which it may maintain with the Lender for any of the foregoing. The covenants of this Section 11.3 shall survive payment or satisfaction of payment of all amounts owing with respect to the Notes, any other Loan Document or any other Obligation.

Appears in 1 contract

Samples: Bridge Loan Agreement (MF Merger Sub Corp.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless harmless, to the fullest extent permitted by law, each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment Commitment, Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Agent to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of (all the transactions contemplated hereby are consummatedforegoing, collectively, the "Indemnified Liabilities"); provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Littelfuse Inc /De)

Indemnification by Borrower. Borrower hereby covenants and agrees to indemnify, defend (awith counsel selected by Lender) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related PersonLender, each Lender Lender’s Affiliates and their respective Affiliatesservicers, members, managers, directors, shareholders, officers, partners, employees, counselattorneys, agentsconsultants and agents (collectively, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities, claimsreasonable costs and expenses (including, demandswithout limitation, actions, judgments, suits, costs, actual attorney’s fees and expenses and disbursements (other costs of investigation or defense, including counsel to the Administrative Agent and the Lendersthose incurred upon any appeal), and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee (whether for breach of contract, in tort or under any way relating to or arising out other theory of or liability) in connection with (i) or as a result of credit having been extended, suspended or terminated under this Agreement or the other Loan Documents or with respect to the execution, delivery, enforcement, performance or administration of, or in any other way arising out of any relating to, this Agreement or the other Loan Document Documents or any other agreement, letter documents or instrument delivered in connection with the transactions contemplated thereby by or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Partyreferred to in this Agreement, or any Environmental Liability related action or failure to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating act with respect to any of the foregoing, whether based on contract, tort or any other theory (including any investigation ofand all product liabilities, preparation forenvironmental liabilities, taxes and legal costs and expenses arising out of or defense of incurred in connection with disputes between or among any pending or threatened claim, investigation, litigation or proceeding) (parties to any of the foregoing described Loan Documents, the correctness, validity or genuineness of any Instrument or Document that may be released or endorsed to Borrower by Lender (which shall automatically be deemed to be without recourse to Lender in this clause (ivany event), a “Proceeding”) the existence, character, quantity, quality, condition, value or delivery of any Goods purporting to be represented by any such Instruments or Documents, or any broker’s commission, finder’s fee or similar charge or fee payable by Borrower in connection with the Loans and the transactions contemplated by this Agreement (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available except to the extent that any such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as Indemnified Liability is determined by a court of competent jurisdiction in a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting have resulted from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witnessgross negligence or willful misconduct. BORROWER, including without limitationFOR ITSELF AND FOR ALL SUCCESSORS, the reasonable fees and expenses of its legal counselASSIGNS, THIRD PARTY BENEFICIARIES AND ALL OTHER PERSONS THAT MAY ASSERT CLAIMS DERIVATIVELY THROUGH SUCH PARTY, HEREBY WAIVES ANY AND ALL CLAIMS FOR INDEMNIFIED LIABILITIES AGAINST ALL INDEMNITEES EXCEPT TO THE EXTENT THAT ANY SUCH INDEMNIFIED LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE JUDGMENT TO HAVE RESULTED FROM SUCH INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO BORROWER, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR FOR INDIRECT PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER. THE PROVISIONS OF THIS SECTION 10.12 SHALL SURVIVE TERMINATION OF LENDER’S COMMITMENT TO MAKE LOANS AND ADVANCES HEREUNDER AND THE TERMINATION OF THIS AGREEMENT.

Appears in 1 contract

Samples: Loan and Security Agreement (Blue Star Foods Corp.)

Indemnification by Borrower. (a) Whether or not To the transactions contemplated hereby are consummatedfullest extent permitted by law, the Borrower shall indemnify and agrees to indemnify, hold harmless and defend the Issuer, the program participants of the Issuer, the Trustee, Bondholders, Servicer, and Financial Monitor, and each Agent-Related Person, each Lender and of their respective Affiliatesofficers, governing members, directors, officersofficials, employees, counsel, agents, trustees, investment advisors attorneys and attorneys-in-fact agents (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified LiabilitiesParties”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to: (i) the Bonds, the Indenture, the Loan Agreement, the Regulatory Agreement, the Loan Documents or the Tax Certificate or the execution or amendment hereof or thereof or in connection with transactions contemplated hereby or thereby, including the issuance, sale or resale of the Bonds; (ii) any act or omission of the Borrower or any of its agents, contractors, servants, employees or licensees in connection with the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or any part thereof; (iii) any lien or charge upon payments by the Borrower to the Issuer and the Trustee, Bondholders, Servicer, and Financial Monitor hereunder, or any taxes (including, without limitation, all casesad valorem taxes and sales taxes), whether assessments, impositions and other charges imposed on the Issuer or not caused by the Trustee, Bondholders, Servicer, and Financial Monitor in respect of any portion of the Project; (iv) any violation of any environmental regulations with respect to, or arisingthe release of any hazardous substances from, the Project or any part thereof; (v) the defeasance and/or redemption, in whole or in part, out of the negligence Bonds; (vi) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in any offering statement or disclosure or continuing disclosure document for the Indemnitee and whether brought by an Indemnitee, a third party Bonds or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummateddocuments relating to the Bonds, or any omission or alleged omission from any offering statement or disclosure or continuing disclosure document for the Bonds of any material fact necessary to be stated therein in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; (vii) any declaration of taxability of interest on the Bonds, or allegations (or regulatory inquiry) that interest on the Bonds is taxable, for federal tax purposes; (viii) the Trustee, Bondholders, Servicer, and Financial Monitor’s acceptance or administration of the trust of the Indenture, or the exercise or performance of any of its powers or duties thereunder or under any of the documents relating to the Bonds to which it is a party; provided that such indemnity shall notexcept (a) in the case of the foregoing indemnification of the Trustee, as to Bondholders, Servicer, and Financial Monitor or any Indemniteesof its respective officers, be available members, directors, officials, employees, attorneys and agents, to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses damages are caused by the negligence or disbursements resulted from the gross negligence, willful misconduct ofof such Indemnified Party; or (b) in the case of the foregoing indemnification of the Issuer or the program participants of the Issuer or any of their officers, or material breach in bad faith of its obligations under the Loan Documents bymembers, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdictiondirectors, officials, employees, attorneys and except agents, to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any such damages arising from are caused by the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release willful misconduct of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) Indemnified Party. In the event that an Indemnitee any action or proceeding is requested brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or required settle the same in its sole discretion; provided that the Indemnified Party shall have the right to appear as a witness review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates proceeding and participate in which such Indemnitee is not named as a defendantthe investigation and defense thereof, and the Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, pay the reasonable fees and expenses of its legal such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the Borrower if in the judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel. In addition thereto, the Borrower will pay upon demand all of the fees and expenses paid or incurred by the Trustee, Bondholders, Servicer, and Financial Monitor and/or the Issuer in enforcing the provisions hereof, as more fully set forth in the Loan Agreement. (b) The rights of any persons to indemnity hereunder and rights to payment of fees and reimbursement of expenses pursuant this Loan Agreement shall survive the final payment or defeasance of the Bonds and in the case of the Trustee, Bondholders, Servicer, and Financial Monitor any resignation or removal. The provisions of this Section shall survive the termination of this Loan Agreement.

Appears in 1 contract

Samples: Loan Agreement

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify agrees to indemnify, save and hold harmless each Agent-Related Person, each Lender and their its respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against against: (i) any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actionsactions or causes of action that are asserted against any Indemnitee by any Person relating directly or indirectly to a claim, judgmentsdemand, suitsaction or cause of action that such Person asserts or may assert against any Obligor, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event Affiliate of any actual conflict Obligor or any of interesttheir respective officers or directors; (ii) any and all claims, additional counsel to the affected parties)) demands, actions or causes of any kind or nature whatsoever which action that may at any time (including at any time following repayment of the Obligations) be asserted or imposed on, incurred by or asserted against any such Indemnitee in any way relating to or Indemnitee, arising out of or in connection with (i) relating to, the executionLoan Documents, deliveryany predecessor loan documents, enforcementthe Loan, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed contemplated use of the proceeds therefromof the Loan, or the relationship of Borrower and Lender under this Agreement or any other Loan Document; (iii) any actual administrative or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated investigative proceeding by any Loan Party, Governmental Authority arising out of or any Environmental Liability related to any Loan Party or (iv) any actual or prospective a claim, litigationdemand, investigation action or proceeding relating to any cause of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing action described in clauses (i) to or (ii) above; and (iv) any and all liabilities (including liabilities under indemnities), collectivelylosses, costs or expenses (including, without limitation, reasonable Attorney Costs) that any Indemnitee suffers or incurs as a result of the “Indemnified Liabilities”)assertion of any foregoing claim, demand, action, cause of action or proceeding, or as a result of the preparation of any defense in connection with any foregoing claim, demand, action, cause of action or proceeding, in all cases, whether or not caused by or arising, in whole or in part, arising out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party and whether or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any not an Indemnitee is a party thereto and whether to such claim, demand, action, cause of action or not any of the transactions contemplated hereby are consummatedproceeding; provided that such indemnity no Indemnitee shall not, as be entitled to indemnification for any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined claim found by a final non-appealable final, nonappealable judgment of a court of competent jurisdictionjurisdiction to arise from its own (or its related parties’) gross negligence, and except to the extent resulting from claims between bad faith or among willful misconduct or for any Lenders in their capacity as suchloss asserted solely against it by another Indemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due in respect of costs, expenses and disbursements under this Section 10.05 8.5 shall be paid payable within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge repayment of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Term Loan Agreement (MacAndrews & Forbes Holdings Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify agrees to indemnify, save and hold harmless each Agent-Related Person, each Lender Bank and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against against: (a) any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements actions or causes of action that are asserted against any Indemnitee by any Person (including counsel to other than the Administrative Agent and the Lendersor any Bank) relating directly or indirectly to a claim, and to the extent reasonably necessarydemand, local counsel in action or cause of action that such Person asserts or may assert against Borrower, any relevant jurisdiction (and, in the event Affiliate of Borrower or any actual conflict of interest, additional counsel to the affected parties)) of any kind their respective officers or nature whatsoever directors which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising arises out of or in connection with (i) the executionLoan Documents, delivery, enforcement, performance the use of Loan proceeds or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, ; (iib) any Commitment and all claims, demands, actions or causes of action that may at any time (including at any time following repayment of the Obligations and the resignation or removal of the Administrative Agent or the replacement of any Bank) be asserted or imposed against any Indemnitee, arising out of or relating to, the Loan or Documents, any predecessor loan documents, the Commitments, the use or proposed contemplated use of the proceeds therefrom, (iii) of any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan PartyLoan, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claimthe relationship of Borrower, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort Administrative Agent and the Banks under this Agreement or any other theory Loan Document; (c) any administrative or investigative proceeding by any Governmental Agency arising out of or related to a claim, demand, action or cause of action described in subsection (a) or (b) above; and (d) any and all liabilities (including liabilities under indemnities), losses, costs or expenses (including, without limitation, attorney’s fees and disbursements and the allocated cost of in-house counsel) that any investigation ofIndemnitee suffers or incurs as a result of the assertion of any foregoing claim, preparation fordemand, action, cause of action or proceeding, or defense as a result of the preparation of any pending or threatened defense in connection with any foregoing claim, investigationdemand, litigation action, cause of action or proceeding) (any , and whether or not an Indemnitee is a party to such claim, demand, action, cause of the foregoing described in this clause (iv), a “Proceeding”) action or proceeding (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No no Indemnitee shall be liable entitled to indemnification for any damages arising from the use claim caused by others of any information its own gross negligence or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee willful misconduct or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofloss asserted against it by another Indemnitee. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge repayment of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Revolving Credit Agreement (Avery Dennison Corporation)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify the Agent (and hold harmless each Agentany sub-Related Personagent thereof), each Lender and their respective Affiliatesthe L/C Issuer, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact each Related Party of any of the foregoing Persons (collectively the each such Person being called an IndemniteesIndemnitee”) against, and hold each Indemnitee harmless from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, or, in the case of the Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Commitment Commitment, Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided provided, that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any AgentAgent or the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimbe payable within ten Business Days after demand therefor. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Gulfport Energy Corp)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) the obligations of each Borrower expressed under any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby being or becoming void, voidable, unenforceable or ineffective as against any Borrower for any reason whatsoever, whether or not known to the Agent or any Lender, the amount of such loss being the amount which Agent or the relevant Lender would otherwise have been entitled to recover from each Borrower, (c) any Commitment Commitment, Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Agent to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiid) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ive) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of (all the transactions contemplated hereby are consummatedforegoing, collectively, the "Indemnified Liabilities"); provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.other

Appears in 1 contract

Samples: Credit Agreement (Micros Systems Inc)

Indemnification by Borrower. (a) Whether or not In consideration of the transactions contemplated hereby are consummatedexecution and delivery of this Agreement by Agent and Lenders and the agreement to extend the Commitments provided hereunder, Borrower shall indemnify hereby agrees to indemnify, exonerate and hold harmless each Agent-Related Person, each Lender and their respective Affiliateseach of the officers, directors, officers, employees, counsel, agents, trustees, investment advisors Affiliates and attorneys-in-fact agents of Agent and each Lender (collectively the each a IndemniteesLender Party”) free and harmless from and against any and all liabilitiesactions, obligationscauses of action, suits, losses, taxesliabilities, damagesdamages and expenses, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements including Legal Costs (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all casesincurred by Lender Parties or any of them as a result of, whether or not caused by arising out of, or arisingrelating to any Loan Party or any of their respective officers, directors or agents, including, without limitation, (a) any tender offer, merger, purchase of equity interests, purchase of assets or other similar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of any of the negligence Loans, (b) the use, handling, release, emission, discharge, transportation, storage, treatment or disposal of the Indemnitee and whether brought any Hazardous Substance at any property owned or leased by an IndemniteeBorrower or any other Loan Party, a third party (c) any violation of any Environmental Laws with respect to conditions at any property owned or leased by any Loan Party or any Loan Party’s directorsthe operations conducted thereon, shareholders (d) the investigation, cleanup or creditors, and regardless remediation of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or offsite locations at which any Loan Party or their respective predecessors are alleged to have any liability for any specialdirectly or indirectly disposed of Hazardous Substances, punitive(e) the execution, indirect delivery, performance or consequential damages relating to enforcement of this Agreement or any other Loan Document. All amounts due in respect of costsDocument by any Lender Party, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving except to the extent any such reimbursement shall repay such amounts to Indemnified Liabilities result solely from the relevant Loan Party applicable Lender Party’s own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any a non-Tax claim. appealable judgment, or (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (if) such settlement includes an unconditional release Person’s general operation of such Indemnitee in form and substance satisfactory to such Indemnitee from its business including all product liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf out of or against Borrower in connection with such Person’s or any of its Subsidiaries Affiliates or Affiliates in which such Indemnitee is not named as licensees manufacture use or sale of a defendantProduct or the provision of a Service. If and to the extent that the foregoing undertaking may be unenforceable for any reason, Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All Obligations provided for in this Section 10.5 shall reimburse such Indemnitee for survive repayment of the Loans, cancellation of the Notes, any foreclosure under, or any modification, release or discharge of, any or all reasonable expenses incurred by it in connection with such Indemnitee’s appearing of the Collateral Documents and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses termination of its legal counselthis Agreement.

Appears in 1 contract

Samples: Credit Agreement (Eton Pharmaceuticals, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions ---------------------------- contemplated hereby are consummated, Borrower shall indemnify agrees to indemnify, defend and hold harmless each Agent-Related PersonPersons, and each Lender Bank and their each of its respective Affiliatesofficers, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”each, an "Indemnified Person") harmless from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, charges, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time (including at any time following repayment of the Loans and Letter of Credit Obligations and the termination, resignation or replacement of Agent or replacement of any Bank) be imposed on, incurred by or asserted against any such Indemnitee 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 (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or including with respect to any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding (including any insolvency proceeding or appellate proceeding) (any related to or arising out of this Agreement, the Loans, the Letter of Credit Obligations or the use of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all casesproceeds thereof, whether or not caused by any Indemnified Person is a party thereto including (i) any tender offer, merger, purchase of stock, purchase of assets or arising, other similar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall notLoans, as to any Indemnitees(ii) the use, be available to the extent that such liabilitieshandling, obligationsrelease, lossesemission, damagesdischarge, penaltiestransportation, claimsstorage, demands, actions, judgments, suits, costs, expenses treatment or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others disposal of any information Hazardous Substance at any property owned or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee leased by Borrower or any Loan Party have Subsidiary, (iii) any liability for violation of any special, punitive, indirect Environmental Laws with respect to conditions at any property owned or consequential damages relating to this Agreement leased by Borrower or any other Loan Document. All amounts due in respect Subsidiary or the operations conducted thereon, (iv) the investigation, cleanup or remediation of costsoffsite locations at which Borrower or any Subsidiary or their respective predecessors are alleged to have directly or indirectly disposed of Hazardous Substances (all the foregoing, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand thereforcollectively, the "Indemnified Liabilities"); provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee Borrower shall not be entitled thereto pursuant have any obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the provisions hereofgross negligence or willful misconduct of such Indemnified Person. The agreements in this Section 10.05 11.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge payment of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Loan and Security Agreement (Gsi Group Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective its Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment the Commitment, Loans or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of (all the transactions contemplated hereby are consummatedforegoing, collectively, the "Indemnified Liabilities"); provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a) 9.5 shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimbe payable within ten Business Days after demand therefor. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Private Business Inc)

Indemnification by Borrower. Borrower hereby covenants and agrees to indemnify, defend (awith counsel selected by Lender) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related PersonLender, each Lender Lender’s Affiliates and their respective Affiliatesservicers, members, managers, directors, shareholders, officers, partners, employees, counselattorneys, agentsconsultants and agents (collectively, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities, claimscosts and expenses (including, demandswithout limitation, actions, judgments, suits, costs, actual and reasonable attorney’s fees and expenses and disbursements (other costs of investigation or defense, including counsel to the Administrative Agent and the Lendersthose incurred upon any appeal), and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee (whether for breach of contract, in tort or under any way relating to or arising out other theory of or liability) in connection with (i) or as a result of credit having been extended, suspended or terminated under this Agreement or the other Loan Documents or with respect to the execution, delivery, enforcement, performance or administration of, or in any other way arising out of any relating to, this Agreement or the other Loan Document Documents or any other agreement, letter documents or instrument delivered in connection with the transactions contemplated thereby by or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Partyreferred to in this Agreement, or any Environmental Liability related action or failure to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating act with respect to any of the foregoing, whether based on contractincluding any and all product liabilities, tort environmental liabilities, taxes and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to and of the Loan Documents, the correctness, validity or genuineness of any Instrument or Document that may be released or endorsed to Borrower by Lender (which shall automatically be deemed to be without recourse to Lender in any event), the existence, character, quantity, quality, condition, value or delivery of any Goods purporting to be represented by any such Instruments or Documents, or any other theory broker’s commission, finder’s fee or similar charge or fee payable by Borrower in connection with the Loans and the transactions contemplated by this Agreement (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available except to the extent that any such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as Indemnified Liability is determined by a court of competent jurisdiction in a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting have resulted solely from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witnessgross negligence or willful misconduct. BORROWER, including without limitationFOR ITSELF AND FOR ALL SUCCESSORS, the reasonable fees and expenses of its legal counselASSIGNS, THIRD PARTY BENEFICIARIES AND ALL OTHER PERSONS THAT MAY ASSERT CLAIMS DERIVATIVELY THROUGH SUCH PARTY, HEREBY WAIVES ANY AND ALL CLAIMS FOR INDEMNIFIED LIABILITIES AGAINST ALL INDEMNITEES EXCEPT TO THE EXTENT THAT ANY SUCH INDEMNIFIED LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE JUDGMENT TO HAVE RESULTED SOLELY FROM SUCH INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO INDEMNITEE SHALL BE RESPONSIBLE OR LIABLE TO BORROWER, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR FOR INDIRECT PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER. THE PROVISIONS OF THIS SECTION 10.14 SHALL SURVIVE TERMINATION OF THE LOANS AND THE TERMINATION OF THIS AGREEMENT.

Appears in 1 contract

Samples: Loan and Security Agreement (Castle Brands Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), the Lead Arranger, the Bookrunner and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Personfrom, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities and related reasonable and documented out-of-pocket expenses (including the reasonable and documented fees, claims, demands, actions, judgments, suits, costs, expenses charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)external counsel) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by the Borrower or any of its Subsidiaries arising out of or of, in connection with with, or as a result of (i) the executionTransactions, deliveryor the execution or delivery of this Agreement, enforcementany other Loan Document, performance or administration of any Loan Document Transaction Document, or any other agreementamendment, letter amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby, thereby, or related thereto or, in the case of the Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof) and their respective Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release Release or threatened Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by any Loan PartyGroup Company at any time, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party the Borrower or any Loan Party’s directors, shareholders or creditorsof its Subsidiaries, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, of such Indemnitee or material breach in bad faith of its obligations under Related Parties; provided further that the Loan Documents byParties shall not be required to reimburse the legal fees and expenses of more than one counsel for all Indemnitees, taken as a whole (in addition to one special counsel in each specialty area, up to one local counsel in each applicable local jurisdiction and any additional counsel for an Indemnitee reasonably deemed appropriate by virtue of actual or potential conflicts of interests incurred in connection with investigating, defending or preparing to defend any such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdictionaction, and except to the extent resulting from claims between suit, proceeding (including any inquiry or among any Lenders in their capacity as suchinvestigation). No Indemnitee Loan Party shall be liable for any damages arising from amounts hereunder (other than the use by others amount of any information reasonable and documented legal fees or other materials obtained through costs and expenses associated with the settlement) to the extent an Indemnitee has entered into any information transmission systems settlement without the Borrower’s consent (such consent not to be unreasonably withheld or delayed), provided that an Indemnitee may enter into a settlement if there is a judgment by a court of competent jurisdiction in connection any such proceeding, in which case the Borrower agrees to indemnify and hold harmless each Indemnitee from and against any and all losses, claims, damages, liabilities and related expenses by reason of such settlement or judgment in accordance with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any the other Loan Document. All amounts due in respect provisions of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof10.04(b). The agreements in this This Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages losses, claims, damages, etc. arising from any non-Tax claim. (b. Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return promptly any and all amounts paid by the Borrower under this Section 10.04(b) Borrower shall not be liable to such Indemnitee for any settlement such fees, expenses or damages to the extent such Indemnitee is not entitled to payment of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities amounts in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisionsterms hereof. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Sucampo Pharmaceuticals, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, The Borrower shall indemnify the Administrative Agent (and hold harmless any sub-agent thereof), each other Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact each Related Parties of any of the foregoing Persons (collectively the each such Person being called an IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements and out-of-pocket fees and expenses (including the reasonable fees, charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)for any Indemnitee) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding in any way relating to to, arising out of, in connection with or by reason of any of the foregoingfollowing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (x) the execution, delivery, enforcement, performance or administration of any Loan Document or any other document delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby or (y) any Commitment, any Credit Extension or the use or proposed use thereof or of the proceeds thereof or (ii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries or any other location, or any Environmental Liability related in any way to the foregoing described in this clause Borrower or any of its Subsidiaries (iv), a “Proceeding”) (all the foregoing described in clauses (i) to and (ivii), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the such Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any such Indemnitee is a party thereto thereto, 75 and whether or not any of such claim, litigation, investigation or proceeding is brought by the transactions contemplated hereby are consummatedBorrower, its equity holders, its affiliates, its creditors or any other Person; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, fees and expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisionsIndemnitee. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

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

Indemnification by Borrower. (a) Whether or not In consideration of the transactions contemplated hereby are consummatedexecution and delivery of this Agreement by Agent and Lxxxxxx and the agreement to extend the Commitments provided hereunder, Borrower shall indemnify hereby agrees to indemnify, exonerate and hold harmless each Agent-Related Person, each Lender and their respective Affiliateseach of the officers, directors, officers, employees, counsel, agents, trustees, investment advisors Affiliates and attorneys-in-fact agents of Agent and each Lender (collectively the each a IndemniteesLender Party”) free and harmless from and against any and all liabilitiesactions, obligationscauses of action, suits, losses, taxesliabilities, damagesdamages and expenses, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements including Legal Costs (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all casesincurred by Lender Parties or any of them as a result of, whether or not caused by arising out of, or arisingrelating to any Loan Party or any of their respective officers, directors or agents, including, without limitation, (a) any tender offer, merger, amalgamation, purchase of equity interests, purchase of assets or other similar transaction financed or proposed to be financed in whole or in part, out directly or indirectly, with the proceeds of any of the negligence Loans, (b) the use, handling, release, emission, discharge, transportation, storage, treatment or disposal of the Indemnitee and whether brought any Hazardous Substance at any property owned or leased by an IndemniteeBorrower or any other Loan Party, a third party (c) any violation of any applicable Environmental Laws with respect to conditions at any property owned or leased by any Loan Party or any Loan Party’s directorsthe operations conducted thereon, shareholders (d) the investigation, cleanup or creditors, and regardless remediation of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or offsite locations at which any Loan Party or their respective predecessors are alleged to have any liability for any specialdirectly or indirectly disposed of Hazardous Substances, punitive(e) the execution, indirect delivery, performance or consequential damages relating to enforcement of this Agreement or any other Loan DocumentDocument by any Lender Party, except to the extent any such Indemnified Liabilities result solely from the applicable Lender Party’s own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction in a non-appealable judgment, or (f) such Person’s general operation of its business including all product liability out of or in connection with such Person’s or any of its Affiliates or licensees manufacture use or sale of a Product or the provision of a Service. If and to the extent that the foregoing undertaking may be unenforceable for any reason, Borrower hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements Obligations provided for in this Section 10.05 10.5 shall survive repayment of the resignation Loans, cancellation of the Notes, any Agentforeclosure under, or any modification, release or discharge of, any or all of the replacement of any Lender, the Collateral Documents and termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligationsthis Agreement. Notwithstanding the foregoing, this Section 10.05(a) 10.5 shall not apply with respect to Taxes other than any Taxes that represent losses or damages losses, claims, damages, etc. arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Elutia Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related PersonBank, each Lender its Affiliates, and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent fees and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event expenses of any actual conflict of interest, additional counsel to the affected parties)counsel) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment or Loan commitment of Bank hereunder or the use or proposed use of the proceeds therefromLetters of credit , or (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Loan Party, Subsidiary or any Environmental Liability related in any way to Borrower, any Loan Party Subsidiary, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (and regardless of whether any of the foregoing described in this clause (iv), Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedIndemnitees; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due in respect of costs, expenses and disbursements under this Section 10.05 9.05 shall be paid payable within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments commitment of Bank to issue Letters of Credit and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Reimbursement and Security Agreement (Amyris Biotechnologies Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify Administrative Agent (and hold harmless each Agentany sub-Related Personagent thereof), each Lender and their respective Affiliatesthe Issuing Lender, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact each Related Party of any of the foregoing Persons (collectively the each such Person being called an IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all liabilities, obligations, losses, taxesclaims, damages, penalties, claimsliabilities and related expenses (other than the allocated costs of in-house counsel but including the reasonable and documented out-of-pocket fees, demands, actions, judgments, suits, costs, expenses charges and disbursements of (including x) one counsel to for all Indemnitees, (y) if deemed necessary by the Administrative Agent and the LendersAgent, and to the extent reasonably necessary, one firm of local counsel in any relevant each appropriate jurisdiction for all Indemnitees and (and, z) in the event case of any an actual or perceived conflict of interestinterest with respect to any Indemnitee, additional of another firm of counsel to the for such affected partiesIndemnitee)) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by Borrower arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated therebyhereby or thereby (including, without limitation, the Indemnitee’s reliance on any Communication executed using an Electronic Signature, or in the form of an Electronic Record), or, in the case of Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.1), (ii) any Commitment Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by the Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower or any Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to Borrower or any Loan Party of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including theory, whether brought by a third party or by Borrower, and regardless of whether any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), Indemnitee is a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”)party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, negligence or willful misconduct ofof such Indemnitee, or material (y) result from a claim brought by Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower has obtained a final and non-appealable judgment in its obligations under the Loan Documents by, favor on such Indemnitee claim as determined by a final non-appealable judgment of a court of competent jurisdiction, and except jurisdiction or (z) result from or related to any dispute that does not arise out of any act or omission on the extent resulting from claims between part of the Borrower or among its Subsidiaries or Affiliates brought by one Indemnitee against any Lenders other Indemnitee (other than any dispute against the Administrative Agent or any arranger in their its capacity as such). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to Without limiting the provisions hereof. The agreements in this of Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing3.1, this Section 10.05(a10.4(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages losses, claims, damages, etc. arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Reliance, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each AgentLender-Related Person, each Lender Person and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) the Commitment, any Commitment Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any and regardless of the foregoing described in this clause (iv), whether Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments Commitment and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a) 9.05 shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimbe payable within ten Business Days after demand therefor. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Planar Systems Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their its respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment or Commitment, Loan or the use or proposed use of the proceeds therefrom, (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower or any Loan PartySubsidiary, or any Environmental Liability related in any way to Borrower, any Loan Party Subsidiary or any other Credit Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any and regardless of the foregoing described in this clause (iv), whether Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct ofof such Indemnitee or, or material breach if the indemnity claim is asserted against the Lender by the Borrower in bad faith respect of its obligations under the Loan Documents byDocuments, such Indemnitee as determined by a final non-appealable judgment breach of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchcontract. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments Commitment and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimbe payable within ten Business Days after demand therefor. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Intercontinentalexchange Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, The Borrower shall indemnify the Administrative Agent (and hold harmless any sub-agent thereof), each other Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact each Related Parties of any of the foregoing Persons (collectively the each such Person being called an IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), reasonable and documented disbursements and out-of-pocket fees and expenses (including the reasonable fees, charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional outside counsel to the affected parties)for any Indemnitee) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding in any way relating to to, arising out of, in connection with or by reason of any of the foregoingfollowing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (x) the execution, delivery, enforcement, performance or administration of any Loan Document or any other document delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby or (y) any Term Commitment, any Borrowing or the use or proposed use thereof or of the proceeds thereof; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, fees and expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee; or (ii) any actual or alleged presence or Release on or from any Real Property currently or formerly owned or operated by the Borrower or any of its Subsidiaries or any other location, or any Environmental Liability related in any way to the foregoing described in this clause Borrower or any of its Subsidiaries (iv), a “Proceeding”) (all the foregoing described in clauses (i) to and (ivii), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the such Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any such Indemnitee is a party thereto thereto, and whether or not any of such claim, litigation, investigation or proceeding is brought by the transactions contemplated hereby are consummated; provided Borrower, its equity holders, its affiliates, its creditors or any other Person. This Section 9.03(b) shall not apply with respect to (i) Taxes, other than any Taxes that such indemnity shall not, as to any Indemnitees, be available to the extent that such represent liabilities, obligations, losses, damages, penalties, claims or costs arising from any non-Tax claims, demands, actions, judgmentsjudgments or suits or (ii) with respect to any claim that did not arise out of any act or omission of any direct or indirect parent or controlling person of the Borrower or its Subsidiaries, suitsany litigation that is solely among Indemnitees (other than any dispute involving claims against Administrative Agent or the Arranger, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim). (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Bridge Credit Agreement (Exar Corp)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related PersonLender, each Lender its Affiliates, and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) the commitment hereunder, any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (and regardless of whether any of the foregoing described in this clause (iv), Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the "Indemnified Liabilities"), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due in respect of costs, expenses and disbursements under this Section 10.05 9.12 shall be paid payable within ten (10) Business Days 45 days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Broadcom Corp)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify indemnify, defend and hold harmless Administrative Agent- Related Persons and each Agent-Related PersonBank, and each Lender and of their respective Affiliatesofficers, directors, officersemployees and agents (each, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”an "Indemnified Person") harmless from and against against: (i) any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, costs and expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)legal fees) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or Person arising out of or relating to (A) the Line of Credit, the Bid Loan Facility, Advances under the Loan Documents, Letters of Credit or the Loan Documents or any document or transaction or action taken or not by any such Person in connection with (i) any of the foregoing, including but not limited to the execution, delivery, enforcement, performance or and administration of any this Agreement and the other Loan Document Documents, or any other agreement, letter or instrument delivered in connection with (B) the transactions contemplated thereby hereby, including any investigation, arbitration, litigation, Insolvency Proceeding or other proceeding thereto related to this Agreement or the consummation other Loan Documents, the Line of Credit, the Bid Loan Facility, Letters of Credit, Advances under the Loan Documents or the use of the transactions contemplated therebyproceeds thereof (including, without limitation, any investigation, litigation or proceeding related to the acquisition by any Borrower Entity or Joint Venture Entity of all or any portion of its assets), whether or not any Indemnified Person is a party; and (ii) any Commitment or Loan or the use or proposed use of the proceeds therefromand all writs, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any Indemnitees, be available to the extent that such liabilities, obligations, losses, damages, penaltiessubpoenas, claims, demands, actions, judgmentsor causes of action that are served on or asserted against any Indemnified Person (if directly or indirectly related to a writ, suitssubpoena, claim, demand, action, or cause of action against Borrower or any Affiliate of Borrower); and any and all liabilities, losses, costs, or expenses (including attorneys' fees) that any Indemnified Person suffers or disbursements resulted incurs as a result of any of said matters; (all the foregoing, collectively, the "Indemnified Liabilities"); provided, that Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities resulting solely from the gross negligence, negligence or willful misconduct of, or material breach of such Indemnified Person; nor shall Borrower have any obligation to indemnify any Designating Bank in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others respect of any information matter with respect to which Borrower is entitled to be indemnified pursuant to Section 11.5 or other materials obtained through in respect of any information transmission systems in connection with this Agreement, nor shall any Indemnitee act or any Loan Party have any liability for any special, punitive, indirect omission by such Designating Bank or consequential damages relating to this its Designated Bid Lender under their Designation Agreement or any other Loan Document. All amounts due agreement entered into between them in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimconnection therewith. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed)further indemnify Administrative Agent, but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify each Bank and each Designated Bid Lender from and hold it harmless each Indemnitee from and against any Indemnified Liabilities in accordance with transfer or documentary taxes, assessments or charges imposed by any governmental authority by reason of the foregoing clause (a). Borrower shall notexecution, without delivery and performance of the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisionsLoan Documents. (c) In Borrower's obligations under this Section 2.3 shall survive payment of all other Obligations, and shall inure to the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf benefit of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendantAdministrative Agent's, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing Banks' and preparing to appear as such a witness, including without limitation, the reasonable fees Designated Bid Lenders' successors and expenses of its legal counselassigns.

Appears in 1 contract

Samples: Unsecured Line of Credit Loan Agreement (Bre Properties Inc /Md/)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummatedThe Loan Parties, Borrower jointly and severally, shall indemnify the Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), the Arrangers and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Personfrom, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements and out-of-pocket fees and expenses (including the fees, charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)counsel) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by the Borrower or any other Loan Party arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, deliveryany other Loan Document, enforcement, performance or administration of any Loan Document or any other agreementamendment, letter amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby, thereby, or related thereto or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release Release or threatened Release of Hazardous Materials on, at, under or from any property currently or formerly owned owned, leased or operated by the Borrower or any Loan Partyof its Restricted Subsidiaries at any time, or any Environmental Liability related in any way to the Borrower or any Loan Party of its Restricted Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party the Borrower or any other Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as (x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the (1) gross negligence, bad faith, material breach or willful misconduct of such Indemnitee or a court Related Party thereof, or (2) a material breach of competent jurisdictionobligations under the this Agreement or the other Loan Documents by such Indemnitee or a Related Party thereof, and except to (y) disputes solely among Indemnitees not involving any act or omission of any Loan Party or any of their respective Related Parties (other than a dispute against the extent resulting from claims between Administrative Agent, Collateral Agent or among any Lenders Arranger in their capacity capacities as such. No Indemnitee shall be liable for any damages ) or (z) arising from the use by others out of any information settlement entered into by such Indemnitee or other materials obtained through a Related Party thereof without the written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided, further, that the Loan Parties shall not be required to reimburse the legal fees and expenses of more than one counsel (in addition to one special counsel in each specialty area, up to one local counsel in each applicable local jurisdiction and any information transmission systems additional counsel for an Indemnified Party reasonably deemed appropriate by virtue of potential conflicts of interests incurred in connection with this Agreementinvestigating, nor shall defending or preparing to defend any Indemnitee such action, suit, proceeding (including any inquiry or investigation) or claim (whether or not any Loan Party have Agent, any liability for any special, punitive, indirect or consequential damages relating to this Agreement Lender or any other Loan Document. All amounts due in respect such Indemnified Party is a party to any action or proceeding out of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving which any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofexpenses arise)). The agreements in this This Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses losses, claims, damages, or damages liabilities arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Term Loan Credit Agreement (MKS Instruments Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related PersonBank, each Lender its Affiliates, and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) the Commitment, any Commitment Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any and regardless of the foregoing described in this clause (iv), whether Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due in respect of costs, expenses and disbursements under this Section 10.05 9.05 shall be paid payable within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments Commitment and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Usana Health Sciences Inc)

Indemnification by Borrower. Borrower shall indemnify Administrative Agent (aand any sub-agent thereof), each Lender and Issuing Bank, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) Whether or not against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the transactions contemplated hereby are consummatedfees, Borrower charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Agent-Related Person, each Lender Indemnitee from all fees and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses time charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event for attorneys who may be employees of any actual conflict of interest, additional counsel to the affected parties)) of any kind or nature whatsoever which may at any time be imposed onIndemnitee, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by Borrower or any other Obligor arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, (ii) any Commitment Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by any Loan PartyObligor or its Subsidiary, or any Environmental Liability related in any way to any Loan Party Obligor or its Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including theory, whether brought by a third party or by Borrower or any investigation ofother Obligor, preparation for, or defense and regardless of whether any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), Indemnitee is a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”)party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee and whether brought by an Indemnitee; provided, a third party or by any Loan Party or any Loan Party’s directorsthat, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, of such Indemnitee or material (y) result from a claim brought by Borrower or any other Obligor against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Obligor has obtained a final and nonappealable judgment in its obligations under the Loan Documents by, favor on such Indemnitee claim as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Georesources Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify Agent (and any sub-agent thereof), Arranger and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless each Agent-Related Personfrom, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxesclaims, damages, penaltiesliabilities and related expenses (including the fees, claims, demands, actions, judgments, suits, costs, expenses charges and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)for any Indemnitee) of any kind or nature whatsoever which may at any time be imposed on, incurred by any Indemnitee or asserted against any such Indemnitee in by any way relating to third party or by Borrower or any other Loan Party arising out of or of, in connection with with, or as a result of (i) the executionexecution or delivery of this Agreement, delivery, enforcement, performance or administration of any other Loan Document or any other agreement, letter agreement or instrument delivered in connection with contemplated hereby or thereby, the transactions contemplated thereby performance by the parties hereto of their respective obligations hereunder or thereunder, or the consummation of the transactions contemplated therebyhereby or thereby or, in the case of the Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower or any Loan Partyof its Subsidiaries, or any Environmental Liability related in any way to Borrower or any Loan Party of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation oftheory, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party Borrower or any other Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummatedthereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilitieslosses, obligations, lossesclaims, damages, penalties, claims, demands, actions, judgments, suits, costs, liabilities or related expenses or disbursements (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, of such Indemnitee or material (y) result from a claim brought by Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Loan Party has obtained a final and nonappealable judgment in its obligations under the Loan Documents by, favor on such Indemnitee claim as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Cogdell Spencer Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the "Indemnitees") from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) the obligations of each Borrower expressed under any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby being or becoming void, voidable, unenforceable or ineffective as against any Borrower for any reason whatsoever, whether or not known to the Agent or any Lender, the amount of such loss being the amount which Agent or the relevant Lender would otherwise have been entitled to recover from each Borrower, (c) any Commitment Commitment, Loan or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Agent to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiid) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ive) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any of the foregoing described in this clause (iv), a “Proceeding”) (all the foregoing described in clauses (i) to (iv), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of (all the transactions contemplated hereby are consummatedforegoing, collectively, the "Indemnified Liabilities"); provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a10.5 shall be payable within ten (10) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimBusiness Days after demand. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Micros Systems Inc)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender the Bank and their respective its Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors agents and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment or Term Loan Commitment, Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (ivc) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any and regardless of the foregoing described in this clause (iv), whether Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a) 8.05 shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a)payable within ten Business Days after demand therefor. Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.First State Bank/Brooke Credit Agreement

Appears in 1 contract

Samples: Credit Agreement (Brooke Credit CORP)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses expenses, and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance performance, or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment Commitment, Loan, or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary, or any other Loan Party, or any Environmental Liability Damages related in any way to Borrower, any Subsidiary, or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation investigation, or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (and regardless of whether any of the foregoing described in this clause (iv), Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory, or sole negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses expenses, or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, negligence or willful misconduct ofof such Indemnitee. Notwithstanding anything contained herein to the contrary, no Indemnitee shall be liabile for any actual or material breach alleged presence or release of Hazardous Materials first introduced to any Borrowing Base Property (or the applicable portion thereof) after any of the following: (x) a foreclosure of such Borrowing Base Property (or the applicable portion thereof) pursuant to the Security Documents; or (y) a deed in bad faith lieu of its obligations under the Loan Documents byforeclosure that is executed, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdictiondelivered, and except accepted by Administrative Agent with respect to such Borrowing Base Property (or the extent resulting from claims between or among any Lenders in their capacity as suchapplicable portion thereof). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any specialindirect, punitive, indirect or consequential damages relating to this Agreement or any other Loan DocumentDocument or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due in respect of costs, expenses and disbursements under this Section 10.05 11.05 shall be paid payable within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitationlimitation entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a deed in lieu of foreclosure of any Mortgage and/or satisfaction of the reasonable fees Obligations. Without limiting any of the remedies provided in this Agreement or any other Loan Document, Borrower acknowledges and expenses agrees that the environmental provisions contained in this Agreement are intended to be “environmental provisions” (as defined in Section 736(f) (2) of its legal counselthe California Code of Civil Procedure) and that Indemnitees are intended to have all the rights afforded a lender under Section 736.

Appears in 1 contract

Samples: Credit Agreement (CNL Hotels & Resorts, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, The Borrower shall indemnify the Administrative Agent (and hold harmless any sub-agent thereof), each other Agent-Related Person, each Lender and their respective Affiliateseach Issuing Bank, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact each Related Parties of any of the foregoing Persons (collectively the each such Person being called an IndemniteesIndemnitee”) from against, and against hold each Indemnitee harmless from, any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements costs (including counsel to the Administrative Agent and the Lenders, and settlement costs to the extent reasonably necessaryeffected with the Borrower’s consent (which consent shall not be unreasonably withheld, conditioned or delayed)), disbursements and out-of-pocket fees and expenses (including reasonable and documented out-of-pocket legal expenses of one main firm of counsel for all such Indemnitees, taken as a whole, one local counsel for all such Indemnitees, taken as a whole, in any each relevant jurisdiction (jurisdiction, one specialty counsel in each relevant specialty area to all such Indemnitees, taken as a whole, and, in the event of any an actual or perceived conflict of interestinterest among Indemnitees, one additional counsel to the each group of affected parties)Indemnitees similarly situated taken as a whole) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee in any way relating to or arising out of or in connection with or by reason of (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (ii) any Commitment or Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liability related to any Loan Party or (iv) any actual or prospective claim, litigation, investigation or proceeding in any way relating to to, arising out of, in connection with or by reason of any of the foregoingfollowing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding): (x) the execution, delivery, enforcement, performance or administration of any Loan Document or any other document delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby or (y) any Commitment, any Loan, any Letter of Credit or the use or proposed use thereof or of the proceeds thereof (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, fees and expenses have resulted from (A) the gross negligence, bad faith or willful misconduct of such Indemnitee, to the extent determined by a court of competent jurisdiction by final and nonappealable judgment; (B) a material breach of the Loan Documents by such Indemnitee, to the extent determined by a court of competent jurisdiction by final and nonappealable judgment, or (C) any proceeding that does not involve an act or omission by the Borrower or any of its Affiliates and that is brought by an Indemnitee against any other Indemnitee (other than against an Indemnitee in its capacity as an Arranger or an Agent under the foregoing described Facility acting in this clause its capacity as such); or (iv)ii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrower or any of its Subsidiaries or any other location, a “Proceeding”) or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries (all the foregoing described in clauses (i) to and (ivii), collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the such Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any such Indemnitee is a party thereto thereto, and whether or not any of such claim, litigation, investigation or proceeding is brought by the transactions contemplated hereby are consummated; provided that such indemnity shall notBorrower, as to any Indemniteesits equity holders, be available to the extent that such liabilitiesits affiliates, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from the gross negligence, willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as such. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement creditors or any other Loan DocumentPerson. All amounts due in respect of costs, expenses and disbursements under this This Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereof. The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, this Section 10.05(a9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses losses, claims or damages arising from any non-Tax claim. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (American Realty Capital Global Trust II, Inc.)

Indemnification by Borrower. (a) Whether or not the transactions contemplated hereby are consummated, Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective its Affiliates, directors, officers, employees, counsel, agents, trustees, investment advisors and attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, taxes, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including counsel to the Administrative Agent and the Lenders, and to the extent reasonably necessary, local counsel in any relevant jurisdiction (and, in the event of any actual conflict of interest, additional counsel to the affected parties)Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (ia) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (iib) any Commitment the Commitment, Loans or Loan Letter of Credit or the use or proposed use of the proceeds therefromtherefrom (including any refusal by Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iiic) any actual or alleged presence or release of Hazardous Materials on, at, under on or from any property currently or formerly owned or operated by Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to Borrower, any Subsidiary or any other Loan Party Party, or (ivd) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (any and regardless of the foregoing described in this clause (iv), whether Indemnitee is a “Proceeding”) party thereto (all the foregoing described in clauses (i) to (iv)foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee and whether brought by an Indemnitee, a third party or by any Loan Party or any Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereby are consummated; provided that such indemnity shall not, as to any IndemniteesIndemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demandsdemand, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence, negligence or willful misconduct of, or material breach in bad faith of its obligations under the Loan Documents by, such Indemnitee as determined by a final non-appealable judgment of a court of competent jurisdiction, and except to the extent resulting from claims between or among any Lenders in their capacity as suchIndemnitee. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through any information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document. All amounts due Document or arising out of its activities in respect of costs, expenses and disbursements under this Section 10.05 shall be paid within ten connection herewith or therewith (10) Business Days whether before or after demand therefor; provided, that each Indemnitee receiving any such reimbursement shall repay such amounts to the relevant Loan Party in the event that such Indemnitee shall not be entitled thereto pursuant to the provisions hereofClosing Date). The agreements in this Section 10.05 shall survive the resignation of any Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. Notwithstanding the foregoing, All amounts due under this Section 10.05(a9.5 shall be payable within ten (10) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claimBusiness Days after demand therefor. (b) Borrower shall not be liable for any settlement of any Proceedings effected without its consent (which consent shall not be unreasonably withheld or delayed), but if settled with Borrower’s consent or if there is a final judgment for the plaintiff in such Proceedings, Borrower shall indemnify and hold harmless each Indemnitee from and against any Indemnified Liabilities in accordance with the foregoing clause (a). Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld or delayed), effect any settlement or consent to the entry of any judgment of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee in form and substance satisfactory to such Indemnitee from all liability on claims that are the subject matter of such Proceedings, (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee and (iii) contains customary confidentiality and non-disparagement provisions. (c) In the event that an Indemnitee is requested or required to appear as a witness in any action brought by or on behalf of or against Borrower or any of its Subsidiaries or Affiliates in which such Indemnitee is not named as a defendant, Borrower shall reimburse such Indemnitee for all reasonable expenses incurred by it in connection with such Indemnitee’s appearing and preparing to appear as such a witness, including without limitation, the reasonable fees and expenses of its legal counsel.

Appears in 1 contract

Samples: Credit Agreement (Private Business Inc)