Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, indemnify and hold harmless the Administrative Agent and the Banks, and each Related Party of any of the foregoing Persons, from and against any and all damages, losses, settlement payments, obligations, liabilities, claims, causes of action, and Proceedings, and reasonable costs and expenses in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing this Credit Agreement or any of the other Loan Documents, or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result from the gross negligence or willful misconduct of the Bank-Related Person as determined by a court of competent jurisdiction in a final and non-appealable judgment.
Appears in 2 contracts
Samples: Credit Agreement (Alliancebernstein L.P.), Credit Agreement (Alliancebernstein Holding L.P.)
Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, (a) Borrower shall indemnify and hold harmless the Administrative Agent and the Bankseach Lender and each Issuing Lender, and each Related Party of any of their respective directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the foregoing Persons, “Indemnitees”) from and against any and all damagesliabilities, obligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes demands, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) or otherwise) of actionany kind or nature whatsoever that may at any time be imposed on, and Proceedings, and reasonable costs and expenses incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection therewithwith (a) the execution, incurreddelivery, sufferedenforcement, sustainedperformance or administration of any Loan Document or any other agreement, letter or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from instrument delivered in connection with the transactions contemplated by thereby, the Loan Documents, extensions of credit (including (athe issuance of any Letter of Credit hereunder) any actual or proposed use by any Borrower or any of its Subsidiaries the consummation of the proceeds of any of the Loanstransactions contemplated thereby, (b) any Borrower Loan or any Letter of its Subsidiaries entering into Credit, or performing this Credit Agreement the use or any proposed use of the other Loan Documentsproceeds therefrom (including any refusal by any 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), or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, actual or threatened alleged presence or release of any Hazardous Substances substance regulated by any Environmental Law on or from any property currently or formerly owned or operated by any Loan Party, or any Environmental Liabilities and Costs related in any way to any Loan Party, or (d) any actual or overtly threatened Proceeding brought 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 with respect to Proceeding) and regardless of whether any Hazardous Substances Indemnitee is a party thereto (including claims with respect to wrongful deathall the foregoing, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, providedas to any Indemnitee, howeverbe available to the extent that such liabilities, the Borrowers shall not be obligated to indemnify any party for any damagesobligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes of actiondemands, Proceedingsactions, judgments, suits, costs, and expenses that were caused directly by or disbursements (iincluding reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) the gross negligence or willful misconduct of the indemnified party as otherwise): (x) are determined by a court of competent jurisdiction in a by final and non- appealable nonappealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result resulted from the gross negligence or willful misconduct of the Bank-Related Person such Indemnitee; (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 Loan Document, if Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction jurisdiction; or (z) result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against any Arranger or Administrative Agent, Swing Line Lender or any Issuing Lender in their capacities as such); provided, further, that such indemnity shall not include the fees and costs of a final separate lead counsel law firm and non-appealable judgmenta local counsel law firm for any action brought in any state or federal court within the State of Oregon. The agreements in this Section 11.3 shall survive the resignation of Administrative Agent, the replacement of any Lender, the termination of the Revolving Loan Commitments and the repayment, satisfaction or discharge of all the other Obligations. All amounts due under this Section 11.3 shall be payable within ten Business Days after demand therefor.
Appears in 1 contract
Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, indemnify and hold harmless the Administrative Agent and the Banks, and each Related Party of any of the foregoing Persons, from and against any and all damages, losses, settlement payments, obligations, liabilities, claims, causes of action, and Proceedings, and reasonable costs and expenses in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing this Credit Agreement or any of the other Loan Documents, or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- non-appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result from the gross negligence or willful misconduct of the Bank-Related Person as determined by a court of competent jurisdiction in a final and non-appealable judgment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Alliancebernstein L.P.)
Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, (a) Borrower shall indemnify and hold harmless the Administrative Agent and each Lender and the BanksIssuing Lender, and each Related Party of any of their respective directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the foregoing Persons, “Indemnitees”) from and against any and all damagesliabilities, obligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes demands, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) or otherwise) of actionany kind or nature whatsoever that may at any time be imposed on, incurred by Columbia – Second Amended and Proceedings, and reasonable costs and expenses Restated Credit Agreement or asserted against any such Indemnitee in any way relating to or arising out of or in connection therewithwith (a) the execution, incurreddelivery, sufferedenforcement, sustainedperformance or administration of any Loan Document or any other agreement, letter or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from instrument delivered in connection with the transactions contemplated by thereby, the Loan Documents, extensions of credit (including (athe issuance of any Letter of Credit hereunder) any actual or proposed use by any Borrower or any of its Subsidiaries the consummation of the proceeds of any of the Loanstransactions contemplated thereby, (b) any Borrower Loan or any Letter of its Subsidiaries entering into Credit, or performing this Credit Agreement the use or any proposed use of the other Loan Documentsproceeds therefrom (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), or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, actual or threatened alleged presence or release of any Hazardous Substances substance regulated by any Environmental Law on or from any property currently or formerly owned or operated by any Loan Party, or any Proceeding brought Environmental Liabilities and Costs related in any way to any Loan Party, or (d) any actual or overtly threatened 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 with respect to claim, investigation, litigation or proceeding) and regardless of whether any Hazardous Substances Indemnitee is a party thereto (including claims with respect to wrongful deathall the foregoing, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, providedas to any Indemnitee, howeverbe available to the extent that such liabilities, the Borrowers shall not be obligated to indemnify any party for any damagesobligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes of actiondemands, Proceedingsactions, judgments, suits, costs, and expenses that were caused directly by or disbursements (iincluding reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) the gross negligence or willful misconduct of the indemnified party as otherwise) (x) are determined by a court of competent jurisdiction in a by final and non- appealable nonappealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result resulted from the gross negligence or willful misconduct of the Bank-Related Person such Indemnitee; (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 Loan Document, if Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction jurisdiction; or (z) result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the arranger or Administrative Agent in their capacities as such); and provided, further, that such indemnity shall not include the fees and costs of a final separate lead counsel law firm and non-appealable judgmenta local counsel law firm for any action brought in any state or federal court within the State of Oregon. The agreements in this Section 11.3 shall survive the resignation of Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. All amounts due under this Section 11.3 shall be payable within ten Business Days after demand therefor.
Appears in 1 contract
Indemnification Damage Waiver. (a) The Borrowers shallBorrowers, regardless jointly and severally, and without limitation as to time, will defend and indemnify the Agent, the Lenders, their Affiliates and each of whether any Loans are made hereundertheir respective officers, indemnify directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless the Administrative Agent and the Banksfrom, and each Related Party of any of the foregoing Persons, from and against any and all damages, losses, settlement paymentsclaims, obligationsdamages, liabilities, claims, causes of action, and Proceedings, and reasonable costs and expenses in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing this Credit Agreement or any of the other Loan Documents, or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable costs of preparation and attorneys’ fees and disbursements of outside legal counsel incurred in connection with any such Proceeding expenses) (collectively, the “Indemnified LiabilitiesLosses”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach incurred by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Indemnified Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreementor arising out of, or relating to (i) any other misrepresentation or breach of any representation or warranty made by any Borrower herein, (ii) any breach of any covenant, agreement or obligation of any Borrower contained in any of the Loan Document Documents, (iii) any investigation, litigation or proceeding against a Borrower or any agreement Indemnified Party and arising out of or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement Agreement, any of the Loan Documents, the Interim DIP Financing Order, the Final DIP Financing Order, the Pre-Petition Loan Agreements, any other loan or the other Loan Documents extension of credit made to a Borrower by an Indemnified Party, any equity ownership in a Borrower held by an Indemnified Party, or otherwise, whether or not the transactions contemplated hereby by this Agreement are consummated, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such Indemnified Party’s gross negligence or thereby except willful misconduct. Each Borrower agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the extent investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. Each Indemnified Party agrees to reimburse the Borrowers for any payments made by the Borrowers to such damages Indemnified Party pursuant to this paragraph for Losses which are finally determined in such proceeding to primarily and directly result from the gross negligence or willful misconduct of such Indemnified Party. The obligations of the BankBorrowers under this paragraph will survive any transfer of the Loans by the Lenders and the termination of this Agreement, the Interim DIP Financing Order, the Final DIP Financing Order, any Pre-Related Person Petition Loan Agreement or any other agreement related to the indemnification provided hereunder. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Borrowers will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as determined appropriately reflect the relative benefits received by a court and fault of competent jurisdiction the Borrowers and such Indemnified Party in a final connection with the matters as to which such Losses relate and non-appealable judgmentother equitable considerations.
Appears in 1 contract
Samples: Possession Credit Agreement (D. E. Shaw Laminar Acquisition Holdings 3, L.L.C.)
Indemnification Damage Waiver. (a) The Borrowers shallBorrower, regardless of whether any Loans are made hereunderwithout limitation as to time, will defend and indemnify the Agent, the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an "Indemnified Party") against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, reasonable out-of-pocket costs (including the Administrative Agent reasonable out-of-pocket costs of preparation and reasonable out-of-pocket attorneys' fees and expenses of one law firm acting as outside counsel to the BanksIndemnified Parties, and each Related as a group (except to the extent there are conflicts in the interests of the Indemnified Parties)) (collectively, the "Losses") incurred by any Indemnified Party as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by a Loan Party herein, (ii) any breach of any covenant, agreement or obligation of a Loan Party contained in any of the foregoing Persons, from and Transaction Documents or (iii) any government investigation or proceeding against a Loan Party or any and all damages, losses, settlement payments, obligations, liabilities, claims, causes Indemnified Party arising out of action, and Proceedings, and reasonable costs and expenses or in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing with this Credit Agreement or any of the other Loan Transaction Documents, whether or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assetsnot the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, releaseparticipation of, or threatened release is commenced or filed against, any Indemnified Party because of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Transaction Document or any agreement or instrument contemplated hereby, such other documents and the transactions contemplated hereby or thereby, other than any Loan or Losses resulting from action on the use part of the proceeds thereof. No Bank-Related Person shall such Indemnified Party which is finally determined in such proceeding to be liable for any damages arising from the use by unintended recipients primarily and directly (x) a result of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result from the party's gross negligence or willful misconduct or intentional misconduct, or (y) a result from a claim brought by any Loan Party or any Subsidiary thereof against an Indemnified Party for breach in bad faith of such Indemnified Party's obligations hereunder or under any other Loan Document. The Borrower agrees to reimburse each Indemnified Party promptly for all such Losses as they are incurred by such Indemnified Party in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The obligations of the Bank-Related Person as determined Borrower under this paragraph will survive any transfer of the Loans by a court the Lenders and the termination of competent jurisdiction in a final and non-appealable judgmentthis Agreement.
Appears in 1 contract
Samples: Credit Agreement (Telos Corp)
Indemnification Damage Waiver. (a) The Borrowers shallCompany, regardless of whether any Loans are made hereunderwithout limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the Administrative Agent costs of preparation and attorneys’ fees and expenses) (collectively, the Banks“Losses”) incurred by any Indemnified Party as a result of, and each Related Party or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by Company herein, (ii) any breach of any covenant, agreement or obligation of Company contained in any of the foregoing Persons, from Loan Documents or (iii) any investigation or proceeding against Company or any Indemnified Party and against any and all damages, losses, settlement payments, obligations, liabilities, claims, causes arising out of action, and Proceedings, and reasonable costs and expenses or in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing with this Credit Agreement or any of the other Loan Documents, whether or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assetsnot the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, releaseparticipation of, or threatened release is commenced or filed against, any Indemnified Party because of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Operative Document or any agreement or instrument contemplated hereby, such other documents and the transactions contemplated hereby or thereby, other than any Loan Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or the use of the proceeds thereofwillful misconduct. No Bank-Related Person shall be liable The Company agrees to reimburse each Indemnified Party promptly for any damages arising from the use all such Losses as they are incurred by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems such Indemnified Party in connection with this Credit Agreement the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the other Loan Documents or Company for any payments made by the transactions contemplated hereby or thereby except Company to the extent Lenders pursuant to this paragraph for Losses which are finally determined in such damages proceeding to primarily and directly result from the gross negligence or willful misconduct of the Bank-Related Person Lenders. The obligations of Company under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then Company will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as determined appropriately reflect the relative benefits received by a court and fault of competent jurisdiction the Company and such Indemnified Party in a final connection with the matters as to which such Losses relate and non-appealable judgmentother equitable considerations.
Appears in 1 contract
Samples: Investment Agreement (Palace Entertainment Holdings, Inc.)
Indemnification Damage Waiver. (a) The Borrowers shallLoan Parties, regardless of whether any Loans are made hereunderjointly and severally, and without limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an "Indemnified Party") against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the Administrative Agent costs of preparation and attorneys’ fees and expenses) (collectively, the Banks"Losses") incurred by any Indemnified Party as a result of, and each Related or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party contained in any of the foregoing Persons, from Loan Documents or (iii) any investigation or proceeding against a Loan Party or any Indemnified Party and against any and all damages, losses, settlement payments, obligations, liabilities, claims, causes arising out of action, and Proceedings, and reasonable costs and expenses or in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing with this Credit Agreement or any of the other Loan Documents, whether or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assetsnot the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, releaseparticipation of, or threatened release is commenced or filed against, any Indemnified Party because of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Transaction Document or any agreement or instrument contemplated hereby, such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or willful misconduct. Each Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable Party agrees to reimburse each Indemnified Party promptly for any damages arising from the use all such Losses as they are incurred by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems such Indemnified Party in connection with this Credit Agreement the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agrees to reimburse the other Loan Documents or Borrower for any payments made by the transactions contemplated hereby or thereby except Borrower to the extent Lenders pursuant to this paragraph for Losses which are finally determined in such damages proceeding to primarily and directly result from the gross negligence or willful misconduct of the Bank-Related Person Lenders. The obligations of the Loan Parties under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as determined appropriately reflect the relative benefits received by a court and fault of competent jurisdiction the Borrower and such Indemnified Party in a final connection with the matters as to which such Losses relate and non-appealable judgmentother equitable considerations.
Appears in 1 contract
Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, (a) Borrower shall indemnify and hold harmless the Administrative Agent and each Lender and the BanksIssuing Lender, and each Related Party of any of their respective directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the foregoing Persons, “Indemnitees”) from and against any and all damagesliabilities, obligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes demands, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including SECOND AMENDED AND RESTATED CREDIT AGREEMENT99 Columbia – Second Amended and Restated Credit Agreement any adversary proceeding, contested matter or motion) or otherwise) of actionany kind or nature whatsoever that may at any time be imposed on, and Proceedings, and reasonable costs and expenses incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection therewithwith (a) the execution, incurreddelivery, sufferedenforcement, sustainedperformance or administration of any Loan Document or any other agreement, letter or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from instrument delivered in connection with the transactions contemplated by thereby, the Loan Documents, extensions of credit (including (athe issuance of any Letter of Credit hereunder) any actual or proposed use by any Borrower or any of its Subsidiaries the consummation of the proceeds of any of the Loanstransactions contemplated thereby, (b) any Borrower Loan or any Letter of its Subsidiaries entering into Credit, or performing this Credit Agreement the use or any proposed use of the other Loan Documentsproceeds therefrom (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), or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, actual or threatened alleged presence or release of any Hazardous Substances substance regulated by any Environmental Law on or from any property currently or formerly owned or operated by any Loan Party, or any Proceeding brought Environmental Liabilities and Costs related in any way to any Loan Party, or (d) any actual or overtly threatened 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 with respect to claim, investigation, litigation or proceeding) and regardless of whether any Hazardous Substances Indemnitee is a party thereto (including claims with respect to wrongful deathall the foregoing, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, providedas to any Indemnitee, howeverbe available to the extent that such liabilities, the Borrowers shall not be obligated to indemnify any party for any damagesobligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes of actiondemands, Proceedingsactions, judgments, suits, costs, and expenses that were caused directly by or disbursements (iincluding reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) the gross negligence or willful misconduct of the indemnified party as otherwise) (x) are determined by a court of competent jurisdiction in a by final and non- appealable nonappealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result resulted from the gross negligence or willful misconduct of the Bank-Related Person such Indemnitee; (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 Loan Document, if Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction jurisdiction; or (z) result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the arranger or Administrative Agent in their capacities as such); and provided, further, that such indemnity shall not include the fees and costs of a final separate lead counsel law firm and non-appealable judgmenta local counsel law firm for any action brought in any state or federal court within the State of Oregon. The agreements in this Section 11.3 shall survive the resignation of Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. All amounts due under this Section 11.3 shall be payable within ten Business Days after demand therefor.
Appears in 1 contract
Indemnification Damage Waiver. (a) The Borrowers shallBorrower, regardless of whether any Loans are made hereunderwithout limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the Administrative Agent costs of preparation and attorneys’ fees and expenses) (collectively, the Banks“Losses”) incurred by any Indemnified Party as a result of, and each Related Party or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Borrower, (ii) any breach of any covenant, agreement or obligation of the Borrower contained in any of the foregoing Persons, from and against any and all damages, losses, settlement payments, obligations, liabilities, claims, causes of action, and Proceedings, and reasonable costs and expenses in connection therewith, incurred, suffered, sustained, Loan Documents or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (aiii) any actual investigation or proposed use by any proceeding against the Borrower or any Indemnified Party and arising out of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing in connection with this Credit Agreement or any of the other Loan Documents, whether or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assetsnot the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, releaseparticipation of, or threatened release is commenced or filed against, any Indemnified Party because of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, such other documents and the transactions contemplated hereby or thereby, other than any Loan Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or the use of the proceeds thereofwillful misconduct. No Bank-Related Person shall be liable The Borrower agrees to reimburse each Indemnified Party promptly for any damages arising from the use all such Losses as they are incurred by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems such Indemnified Party in connection with this Credit Agreement the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the other Loan Documents or Borrower for any payments made by the transactions contemplated hereby or thereby except Borrower to the extent Lenders pursuant to this paragraph for Losses which are finally determined in such damages proceeding to primarily and directly result from the gross negligence or willful misconduct of the Bank-Related Person Lenders. The obligations of the Borrower under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Borrower will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as determined appropriately reflect the relative benefits received by a court and fault of competent jurisdiction the Borrower and such Indemnified Party in a final connection with the matters as to which such Losses relate and non-appealable judgmentother equitable considerations.
Appears in 1 contract
Samples: Credit Agreement (DelStaff, LLC)
Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, (a) Borrower shall indemnify and hold harmless the Administrative Agent and each Lender and their respective directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the Banks, and each Related Party of any of the foregoing Persons, “Indemnitees”) from and against any and all damagesliabilities, obligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes demands, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) or otherwise) of actionany kind or nature whatsoever that may at any time be imposed on, and Proceedings, and reasonable costs and expenses incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection therewithwith (a) the execution, incurreddelivery, sufferedenforcement, sustainedperformance or administration of any Loan Document or any other agreement, letter or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from instrument delivered in connection with the transactions contemplated by thereby or the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries consummation of the proceeds of any of the Loanstransactions contemplated thereby, (b) any Borrower Loan or any of its Subsidiaries entering into the use or performing this Credit Agreement or any proposed use of the other Loan Documentsproceeds therefrom, or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, actual or threatened alleged presence or release of any Hazardous Substances substance regulated by any Environmental Law on or from any property currently or formerly owned or operated by any Loan Party, or any Proceeding brought Environmental Liabilities and Costs related in any way to any Loan Party, or (d) any actual or overtly threatened 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 with respect to claim, investigation, litigation or proceeding) and regardless of whether any Hazardous Substances Indemnitee is a party thereto (including claims with respect to wrongful deathall the foregoing, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, providedas to any Indemnitee, howeverbe available to the extent that such liabilities, the Borrowers shall not be obligated to indemnify any party for any damagesobligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes of actiondemands, Proceedingsactions, judgments, suits, costs, and expenses that were caused directly by or disbursements (iincluding reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) the gross negligence or willful misconduct of the indemnified party as otherwise) (x) are determined by a court of competent jurisdiction in a by final and non- appealable nonappealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result resulted from the gross negligence or willful misconduct of the Bank-Related Person such Indemnitee; (y) result from a claim brought by Xxxxxxxx against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any Loan Document, if Xxxxxxxx has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction jurisdiction; or (z) result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the arranger or Administrative Agent in their capacities as such); and provided, further, that such indemnity shall not include the fees and costs of a final separate lead counsel law firm and non-appealable judgment.a local counsel law firm for any action brought in any state or federal court within the State of Oregon. The agreements in this Section 11.3 shall survive the resignation of Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. All amounts due under this Section 11.3 shall be payable within ten Business Days after demand therefor. SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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Indemnification Damage Waiver. (a) The Borrowers shallLoan Parties, regardless of whether any Loans are made hereunderjointly and severally, and without limitation as to time, will defend and indemnify the Lenders and their respective officers, directors, managers, employees, attorneys and agents (each, an “Indemnified Party”) against, and hold each Indemnified Party harmless from, all losses, claims, damages, liabilities, costs (including the Administrative Agent costs of preparation and attorneys’ fees and expenses) (collectively, the Banks“Losses”) incurred by any Indemnified Party as a result of, and each Related or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by any Loan Party herein, (ii) any breach of any covenant, agreement or obligation of any Loan Party contained in any of the foregoing Persons, from Loan Documents or (iii) any investigation or proceeding against a Loan Party or any Indemnified Party and against any and all damages, losses, settlement payments, obligations, liabilities, claims, causes arising out of action, and Proceedings, and reasonable costs and expenses or in connection therewith, incurred, suffered, sustained, or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from the transactions contemplated by the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (b) any Borrower or any of its Subsidiaries entering into or performing with this Credit Agreement or any of the other Loan Documents, whether or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assetsnot the transactions contemplated by this Agreement are consummated, which investigation or proceeding requires the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, releaseparticipation of, or threatened release is commenced or filed against, any Indemnified Party because of any Hazardous Substances or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”), provided, however, the Borrowers shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, such other documents and the transactions contemplated hereby or thereby, other than any Losses resulting from action on the part of such Indemnified Party which is finally determined in such proceeding to be primarily and directly a result of such party’s gross negligence or willful misconduct. Each Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable Party agrees to reimburse each Indemnified Party promptly for any damages arising from the use all such Losses as they are incurred by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems such Indemnified Party in connection with this Credit Agreement the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom. The Lenders agree to reimburse the other Loan Documents or Parties for any payments made by the transactions contemplated hereby or thereby except Loan Parties to the extent Lenders pursuant to this paragraph for Losses which are finally determined in such damages proceeding to primarily and directly result from the gross negligence or willful misconduct of the Bank-Related Person Lenders. The obligations of the Loan Parties under this paragraph will survive any transfer of the Notes by the Lenders and the termination of this Agreement. In the event that the foregoing indemnity is unavailable or insufficient to hold an Indemnified Party harmless, then the Loan Parties will contribute to amounts paid or payable by such Indemnified Party in respect of such Indemnified Party’s Losses in such proportions as determined appropriately reflect the relative benefits received by a court and fault of competent jurisdiction the Loan Parties and such Indemnified Party in a final connection with the matters as to which such Losses relate and non-appealable judgmentother equitable considerations.
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Indemnification Damage Waiver. The Borrowers shall, regardless of whether any Loans are made hereunder, (a) Borrower shall indemnify and hold harmless the Administrative Agent and each Lender and their respective directors, officers, employees, counsel, agents and attorneys-in-fact (collectively the Banks, and each Related Party of any of the foregoing Persons, “Indemnitees”) from and against any and all damagesliabilities, obligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes demands, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ fees, whether incurred at the trial or appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) or otherwise) of actionany kind or nature whatsoever that may at any time be imposed on, and Proceedings, and reasonable costs and expenses incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection therewithwith (a) the execution, incurreddelivery, sufferedenforcement, sustainedperformance or administration of any Loan Document or any other agreement, letter or required to be paid by an indemnified party by reason of or resulting, 72 AMERICAS/2023306744.4 directly or indirectly, from instrument delivered in connection with the transactions contemplated by thereby or the Loan Documents, including (a) any actual or proposed use by any Borrower or any of its Subsidiaries consummation of the proceeds of any of the Loanstransactions contemplated thereby, (b) any Borrower Loan or any of its Subsidiaries entering into the use or performing this Credit Agreement or any proposed use of the other Loan Documentsproceeds therefrom, or (c) with respect to any Borrower and its Subsidiaries and their respective properties and assets, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, actual or threatened alleged presence or release of any Hazardous Substances substance regulated by any Environmental Law on or from any property currently or formerly owned or operated by any Loan Party, or any Proceeding brought Environmental Liabilities and Costs related in any way to any Loan Party, or (d) any actual or overtly threatened 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 with respect to claim, investigation, litigation or proceeding) and regardless of whether any Hazardous Substances Indemnitee is a party thereto (including claims with respect to wrongful deathall the foregoing, personal injury, or damage to property), in each case including the reasonable fees and disbursements of outside legal counsel incurred in connection with any such Proceeding (collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, providedas to any Indemnitee, howeverbe available to the extent that such liabilities, the Borrowers shall not be obligated to indemnify any party for any damagesobligations, losses, settlement paymentsdamages, obligations, liabilitiespenalties, claims, causes of actiondemands, Proceedingsactions, judgments, suits, costs, and expenses that were caused directly by or disbursements (iincluding reasonable attorneys’ fees, whether incurred at the trial or CREDIT AGREEMENT PAGE 56 appellate level, in an arbitration or administrative proceeding, in bankruptcy (including any adversary proceeding, contested matter or motion) the gross negligence or willful misconduct of the indemnified party as otherwise) (x) are determined by a court of competent jurisdiction in a by final and non- appealable nonappealable judgment or (ii) any material breach by any Defaulting Bank of its obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result resulted from the gross negligence or willful misconduct of the Bank-Related Person such Indemnitee; (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 Loan Document, if Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction jurisdiction; or (z) result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the arranger or the Administrative Agent in their capacities as such); and provided, further, that such indemnity shall not include the fees and costs of a final separate lead counsel law firm and non-appealable judgmenta local counsel law firm for any action brought in any state or federal court within the State of Oregon. The agreements in this Section 11.3 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. All amounts due under this Section 11.3 shall be payable within ten Business Days after demand therefor.
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Indemnification Damage Waiver. The Borrowers shall(a) Borrower shall pay, regardless of whether any Loans are made hereunderindemnify, indemnify defend, and hold harmless the Administrative Agent and Agent-Related Persons, the BanksJoint Arranger-Related Persons, the Lender-Related Persons, and each Related Party of any of Participant (each, an “Indemnified Person”) harmless (to the foregoing Persons, fullest extent permitted by law) from and against any and all damagesclaims, lossesdemands, settlement paymentssuits, obligationsactions, investigations, proceedings, liabilities, claimsfines, causes of actioncosts, penalties, and Proceedingsdamages (other than in relation to lawsuits solely between the Lenders or Lender-Related Persons or solely between the Joint Arrangers and the Joint Arranger-Related Persons related to (i) the sharing of fees or payments pursuant to the Loan Documents or (ii) the sharing of fees or payments pursuant to any agreement of the type referenced in Section 14.1(e), but expressly inclusive of lawsuits against Agent, the Agent-Related Persons, the Joint Arrangers and the Joint Arranger-Related Persons, in such capacities, or involving an act or omission on the part of Parent, Intermediate Holdings or any of itstheir respective Subsidiaries or Affiliates), and all reasonable fees and out-of-pocket disbursements of attorneys (provided that attorneys’ fees shall be limited to one legal counsel for Agent and one additional legal counsel for the Lender Group (as a whole), and if necessary, (x) a single local counsel in each relevant jurisdiction and a special or regulatory counsel in each specialty and in each relevant jurisdiction for each of Agent and the Lender Group (as a whole) and (y) in the case of an actual or perceived conflict of interest, one additional counsel for each similarly affected group and if reasonably necessary, one additional local counsel for each similarly affected group in each relevant jurisdiction and one additional special or regulatory counsel in each specialty and in each relevant jurisdiction), experts, or consultants and all other costs and expenses actually incurred in connection therewiththerewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), incurredat any time asserted against, suffered, sustainedimposed upon, or required to be paid incurred by an indemnified party by reason any of them (a) in connection with or as a result of or resultingrelated to the execution and delivery (provided that Borrower shall not be liable for costs and expenses (including attorneys’ fees) of any Lender (other than Jefferies Finance and the other Joint Arrangers) incurred in advising, 72 AMERICAS/2023306744.4 directly structuring, drafting, reviewing, administering or indirectly, from the transactions contemplated by syndicating the Loan Documents), enforcement, performance, or administration (including (aany restructuring or workout with respect hereto) any actual or proposed use by any Borrower or any of its Subsidiaries of the proceeds of any of the Loansthis Agreement, (b) any Borrower or any of its Subsidiaries entering into or performing this Credit Agreement or any of the other Loan Documents, or the transactions contemplated hereby or thereby or the monitoring of Parent’s and its Restricted Subsidiaries’ compliance with the terms of the Loan Documents, provided, however, that the indemnification in this clause (ca) shall not extend to (i) disputes solely between or among the Lenders or Lender-Related Persons, (ii) disputes solely among the Joint Arrangers and the Joint Arranger-Related Persons related to (x) the sharing of fees or payments pursuant to the Loan Documents or (y) the sharing of fees or payments pursuant to any agreement of the type referenced in Section 14.1(e), but expressly inclusive of lawsuits against Agent, the Agent-Related Persons, the Joint Arrangers and the Joint Arranger-Related Persons, in such capacities, or involving an act or omission on the part of Parent or any of itsIntermediate Holdings or any of their respective Subsidiaries or Affiliates, (iii) disputes solely between or among the Lenders and their respective Affiliates; it being understood and agreed that the indemnification in this clause (a) shall extend to Agent (but not the Lenders) relative to disputes between or among Agent on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, or (iv) any Taxes or any costs attributable to Taxes, which shall be governed by Section 16), (b) with respect to any Borrower and its Subsidiaries and their respective properties and assetsinvestigation, the violation of any Environmental Law, the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, releaselitigation, or threatened release proceeding related to this Agreement, any other Loan Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any Hazardous Substances Indemnified Person is a party thereto and regardless of whether brought by a Lender, a third party or by the Parent, Borrower or any Proceeding brought or threatened with respect to any Hazardous Substances (including claims with respect to wrongful death, personal injuryother Loan Party), or damage to property)the transactions contemplated by this Agreement, any of the other Loan Documents, or the transactions contemplated hereby or thereby, or any act, omission, event, or circumstance in each case including the reasonable fees any manner related thereto, and disbursements of outside legal counsel incurred (c) in connection with or arising out of any presence or release of Hazardous Materials at, on, under, to or from any assets or properties owned, leased or operated by Parent, Intermediate Holdings or any of itstheir respective Subsidiaries or any Environmental Actions, Environmental Liabilities and costs or Remedial Actions related in any way to any such Proceeding assets or properties of Parent, Intermediate Holdings or any of itstheir respective Subsidiaries at any time prior to foreclosure upon Agent’s Liens and Agent’s possession of the applicable property or assets (collectivelyeach and all of the foregoing, the “Indemnified Liabilities”). The foregoing to the contrary notwithstanding, provided, however, the Borrowers Borrower shall not be obligated to indemnify any party for any damages, losses, settlement payments, obligations, liabilities, claims, causes of action, Proceedings, costs, and expenses that were caused directly by (i) the gross negligence or willful misconduct of the indemnified party as determined by a court of competent jurisdiction in a final and non- appealable judgment or (ii) any material breach by any Defaulting Bank of its have no obligation to fund a Loan pursuant to this Credit Agreement, provided that no Borrower is then in Default. Further, the Borrowers shall not be liable for any indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages) of any indemnified party, provided that the foregoing shall not limit the Borrowers’ obligation to indemnify an indemnified party against indirect or consequential damages asserted against such indemnified party by a third party, to the extent that the Borrowers are otherwise obligated to indemnify such indemnified party Indemnified Person under this Section 16. In Proceedings, or the preparation therefor, the indemnified parties shall be entitled to select their legal counsel and, in addition to the foregoing indemnity, the Borrowers shall, promptly upon demand, pay in the first instance, or reimburse the indemnified parties for, the reasonable fees and expenses of such legal counsel. The Borrowers shall not be responsible under this section for the fees and costs of more than one law firm in any one jurisdiction for the Borrowers and the indemnified parties 10.3 with respect to any one Proceeding or set of related Proceedings, unless any indemnified party shall have reasonably concluded Indemnified Liability that there are legal defenses available to it that are different from or additional to those available to the Borrowers or there are other circumstances that in the reasonable judgment of the indemnified parties make separate counsel advisable. If, and to the extent that the obligations of the Borrowers under this Section 16 are unenforceable for any reason, the Borrowers shall make the maximum contribution to the payment in satisfaction of such obligations that is permissible under applicable law. The covenants contained in this Section 16 shall survive payment or satisfaction in full of all other Obligations and the termination of the Commitments and the Loan Documents. To the fullest extent permitted by applicable law, the Administrative Agent, the Banks, and any Related Party of any of the foregoing Persons (each, a “Bank-Related Person”), shall not be liable for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) of the Borrowers arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Bank-Related Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby except to the extent such damages result from the gross negligence or willful misconduct of the Bank-Related Person as determined by a court of competent jurisdiction in a final and non-appealable judgmentdecision determines to have resulted from the gross negligence or willful misconduct of such Indemnified Person or its officers, directors, employees, attorneys or agents. This provision shall survive the termination of this Agreement and the repayment of the Obligations. If any Indemnified Person makes any payment to any other Indemnified Person with respect to an Indemnified Liability as to which Borrower was required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrower with respect thereto; provided, that, to the extent of any payments made by Borrower to any Indemnified Person in respect of Indemnified Liabilities pursuant to this Section 10.3, Borrower shall be subrogated to the rights of recovery by such Indemnified Persons against any third Person in respect of such Indemnified Liabilities, so long as Borrower has indefeasibly paid in full all of the Indemnified Liabilities owed by Borrower to the Indemnified Persons pursuant to the terms and conditions of this Section 10.3. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON.
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Samples: Credit Agreement (Golden Nugget Online Gaming, Inc.)
