Common use of Indemnification by the Guarantors Clause in Contracts

Indemnification by the Guarantors. Each Guarantor shall indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by either Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Guaranty, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Guaranty and the other Loan Documents, (ii) any Loan, Letter of Credit or Guaranteed Hedge Agreement or the use or proposed use of the proceeds therefrom (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 or from any property owned or operated by any Loan Party, or any Environmental Liability related in any way 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, whether brought by a third party or by either Borrower or any other Loan Party or any of such Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) 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 (y) result from a claim brought by either 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 such Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the expiration or cancellation of any Letter of Credit, the closing out and termination of any Guaranteed Hedge Agreement and the repayment, satisfaction or discharge of all the Guaranteed Obligations.

Indemnification by the Guarantors. Each Guarantor The Guarantors, jointly and severally, shall indemnify each Indemnitee Secured Party and each Related Party thereof (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable out-of-pocket fees, charges and disbursements of any legal counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by either Borrower Person (including the Sponsor or any other Loan Party Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this GuarantyAgreement, any other Loan Document to which any Guarantor is a party or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) each Secured Party and its Related Parties only, the administration of this Guaranty Agreement and the other Loan Documents, Documents to which any Guarantor is a party (including in respect of any matters addressed in Section 3.02) or (ii) any Loan, Letter of Credit or Guaranteed Hedge Agreement or the use or proposed use of the proceeds therefrom (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 or from any property owned or operated by any Loan Party, or any Environmental Liability related in any way 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, whether brought by a third party party, by any Guarantor or by either Borrower any director, shareholder or creditor of any other Loan Party or any of such Borrower’s or such Loan Party’s directors, shareholders or creditorsGuarantor, and regardless of whether any Indemnitee is a party theretothereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents to which any Guarantor is a party is consummated, 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 Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (xA) are determined by a court of competent jurisdiction by final and nonappealable non‑appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (yB) result from a claim brought by either Borrower or any other Loan Party Guarantor against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party Guarantor has obtained a final and nonappealable non‑appealable judgment in its favor on such claim as determined by a court of competent jurisdiction. The agreements in Without limiting the provisions of Section 3.02(c), this Section 8.03(b) shall survive the resignation of the Administrative Agentnot apply with respect to Taxes other than any Taxes that represent losses, the replacement of claims, damages or liabilities arising from any Lender, the expiration or cancellation of any Letter of Credit, the closing out and termination of any Guaranteed Hedge Agreement and the repayment, satisfaction or discharge of all the Guaranteed Obligationsnon‑Tax claim.

Indemnification by the Guarantors. Each Guarantor Notwithstanding any exceptions or exclusions with respect to the representations and warranties made by each of the Guarantors in Article IV, the Guarantors shall indemnify the Administrative Agent, each Indemnitee Lender and each Arranger (each such Person being called an "Indemnitee") against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (expenses, including the reasonable out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by either Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Guaranty, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Guaranty and the other Loan Documents, (ii) any Loan, Letter of Credit or Guaranteed Hedge Agreement or the use or proposed use of the proceeds therefrom (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 or from any property owned or operated by any Loan Party, or any Environmental Liability related in any way to any Loan Party, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the foregoingTransactions or any other transactions contemplated hereby or (ii) any Loan or the use of the proceeds therefrom, whether based on contract, tort or any other theory, whether brought by a third party or by either Borrower or any other Loan Party or any of such Borrower’s or such Loan Party’s directors, shareholders or creditors, theory and regardless of whether any Indemnitee is a party thereto; provided that (A) such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) 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 and (B) the Guarantors shall have no obligation to any Indemnitee hereunder in connection with (x) any claim, litigation, investigation or proceeding between solely two or more Indemnitees (including any claim, litigation, investigation or proceeding between solely two or more parties to the Arranger Participation Agreement) except to the extent arising solely because of any Default by any Guarantor and (y) result from a claim brought any waiver, release or settlement entered into by either 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 such Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. The agreements in this Section shall survive without the resignation prior written consent of the Administrative AgentGuarantors solely to the extent such release admits criminal negligence or liability. Each Indemnitee agrees that it shall consult in good faith with the Guarantors with respect to any waiver, release or settlement to be entered into by such Indemnitee during negotiation thereof and for which such Indemnitee seeks indemnification pursuant to this Section. Except with respect to any claim, litigation, investigation or proceeding between two or more Indemnitees for which the Guarantors are required to indemnify pursuant to this Section, the replacement Guarantors shall be obligated to pay only the reasonable fees and expenses of a single special New York counsel and any Lendernecessary single local counsel in Brazil to the Indemnitees collectively for each such claim, the expiration investigation or cancellation of any Letter of Credit, the closing out and termination of any Guaranteed Hedge Agreement and the repayment, satisfaction or discharge of all the Guaranteed Obligationsproceeding.

Indemnification by the Guarantors. Each Guarantor The Guarantors, jointly and severally, shall indemnify each Indemnitee Secured Party and each Related Party thereof (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable out-of-pocket fees, charges and disbursements of any legal counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by either Borrower Person (including the Sponsor or any other Loan Party Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this GuarantyAgreement, any other Loan Document to which any Guarantor is a party or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) each Secured Party and its Related Parties only, the administration of this Guaranty Agreement and the other Loan Documents, Documents to which any Guarantor is a party (including in respect of any matters addressed in Section 3.02) or (ii) any Loan, Letter of Credit or Guaranteed Hedge Agreement or the use or proposed use of the proceeds therefrom (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 or from any property owned or operated by any Loan Party, or any Environmental Liability related in any way 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, whether brought by a third party party, by any Guarantor or by either Borrower any director, shareholder or creditor of any other Loan Party or any of such Borrower’s or such Loan Party’s directors, shareholders or creditorsGuarantor, and regardless of whether any Indemnitee is a party theretothereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents to which any Guarantor is a party is consummated, 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 Indemnitee, be available to the extent that NYDOCS02/1024806.8-25- Midway - Guaranty such losses, claims, damages, liabilities or related expenses (xA) are determined by a court of competent jurisdiction by final and nonappealable non‑appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (yB) result from a claim brought by either Borrower or any other Loan Party Guarantor against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party Guarantor has obtained a final and nonappealable non‑appealable judgment in its favor on such claim as determined by a court of competent jurisdiction. The agreements in Without limiting the provisions of Section 3.02(c), this Section 8.03(b) shall survive the resignation of the Administrative Agentnot apply with respect to Taxes other than any Taxes that represent losses, the replacement of claims, damages or liabilities arising from any Lender, the expiration or cancellation of any Letter of Credit, the closing out and termination of any Guaranteed Hedge Agreement and the repayment, satisfaction or discharge of all the Guaranteed Obligationsnon‑Tax claim.

Indemnification by the Guarantors. Each Guarantor The Guarantors, jointly and severally, shall indemnify each Indemnitee againstindemnify, defend and hold each Indemnitee harmless fromthe Director, the Treasurer, the State, the Authority and the Trustee (including any member, officer, director or employee thereof) (collectively, the “Indemnified Parties”) against any and all lossesliabilities, obligations, claims, damages, liabilities penalties, causes of action, costs and related expenses (including the including, without limitation, reasonable out-of-pocket fees, charges attorneys’ fees and disbursements of any counsel for any Indemnitee)expenses) imposed upon, incurred by any Indemnitee or asserted against an Indemnified Party arising or resulting from, or in any Indemnitee way connected with (i) financing, acquisition, construction, installation, operation, use or maintenance of the Project, (ii) any act, failure to act or misrepresentation by any third party or by either Borrower or any other Loan Party arising out of, Guarantor in connection with, or as in the performance of any obligation on any Guarantor’s or the Authority’s part to be performed, related to the issuance, sale and delivery of the Bonds, under the Loan Agreement, under the Trust Agreement, under the Lease or under any of the other Operative Documents; or (iii) an act or failure to act or misrepresentation by any Guarantor or the Authority in connection with, or in the performance of any obligation on any Guarantor’s, or the Authority’s part to be performed, related to, the State Assistance, the State Loan, the LDI Loan or the Lease. In the event any action or proceeding is brought against any Indemnified Party by reason of any such claim, such Indemnified Party will promptly give written notice thereof to the Guarantors. Any Guarantor shall be entitled to participate at its own expense in the defense or, if it so elects, to assume at its own expense the defense of such claim, suit, action or proceeding, in which event such defense shall be conducted by counsel chosen by such Guarantor or Guarantors, and acceptable to the Director; but if such Guarantor or Guarantors shall elect not to assume such defense, such Guarantor or Guarantors shall reimburse such Indemnified Party for the reasonable fees and expenses of any counsel retained by such Indemnified Party. If at any time the Indemnified Party becomes dissatisfied, in their reasonable discretion, with the selection of counsel by a result Guarantor, a new mutually agreeable counsel shall be retained at the expense of such Guarantor. Each Indemnified Party agrees that the Guarantors shall have the sole right to compromise, settle or conclude any claim, suit, action or proceeding against any of the Indemnified Parties. Notwithstanding the foregoing, each Indemnified Party shall have the right to employ counsel in any such action at its own expense; and provided further that such Indemnified Party shall have the right to employ counsel in any such action and the fees and expenses of such counsel shall be at the expense of the Guarantors if: (i) the execution or delivery employment of this Guaranty, counsel by such Indemnified Party has been authorized by any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Guaranty and the other Loan DocumentsGuarantor, (ii) there reasonably appears that there is a conflict of interest between any Loan, Letter of Credit or Guaranteed Hedge Agreement or Guarantor and the use or proposed use Indemnified Party in the conduct of the proceeds therefrom (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 defense of such Letter action (in which case no Guarantor shall have the right to direct the defense of Credit), such action on behalf of the Indemnified Party) or (iii) no Guarantor shall in fact have employed counsel to assume the defense of such action. The Guarantors, jointly and severally, shall also indemnify the Indemnified Parties from and against all costs and expenses, including reasonable attorneys’ fees, lawfully incurred in enforcing any actual or alleged presence or release obligations of Hazardous Materials on or from any property owned or operated by any the Authority under the Loan PartyDocuments, ATI under the Lease or any Environmental Liability related in any way to any Loan Party, Guarantor under this Guaranty or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort other Operative Documents. The obligations of the Guarantors under this Section shall survive the expiration or termination of the Lease and the termination of the Loan Documents and the Operative Documents and shall be in addition to any other theoryrights, whether brought including without limitation, rights to indemnity which any Indemnified Party may have at law, in equity, by contract or otherwise. In the event any Indemnified Party seeks indemnification under this Section, such Indemnified Party will inform the Guarantors of a third party or by either Borrower claim as soon as reasonably practicable after it receives notice of the claim, will permit the Guarantors to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration), and will cooperate as requested (at the expense of the Guarantors) in the defense of the claim. Notwithstanding anything to the contrary in this Guaranty or any other Loan Party or any Document, with respect to the Authority only, the Guarantors’ indemnification of such Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity the Authority hereunder shall not, as in no event extend to any Indemniteeliabilities, be available to the extent that such lossesobligations, claims, damages, liabilities or related penalties, causes of action, costs and expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted the extent that they result from the gross negligence negligent, willful or willful misconduct of such Indemnitee wanton acts or (y) result from a claim brought by either 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 such Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. The agreements in this Section shall survive the resignation omissions of the Administrative Agent, Authority and/or its employees or agents (other than the replacement Guarantors and their respective affiliates in their capacity as agents of any Lender, the expiration or cancellation of any Letter of Credit, the closing out and termination of any Guaranteed Hedge Agreement and the repayment, satisfaction or discharge of all the Guaranteed ObligationsAuthority) .