Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defend, indemnify, and hold harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, or the Collateral; (ii) the transactions contemplated under any of the Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment LetterCommitment, the Collateral, the Applicable Underlying Loan Documents, or the Applicable Underlying Loan Collateral; (ii) the transactions contemplated under any of the Loan Documents or the Applicable Underlying Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower or an Applicable Underlying Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the any Applicable Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the an Applicable Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the any Applicable Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the an Applicable Resort; (xi) the preparation of an environmental audit or report on the an Applicable Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, an Applicable Underlying Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under the Applicable Underlying Loan Documents or any Timeshare DocumentsApplicable Laws; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors Guarantor any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment LetterCollateral, the Applicable Underlying Transaction Documents, or the Applicable Underlying Transaction Collateral; (ii) the transactions contemplated under any of the Loan Documents or the Applicable Underlying Transaction Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower or an Applicable Underlying Developer to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (viivi) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the any Applicable Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viiivii) the removal or remediation of any Hazardous Materials from the an Applicable Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ixviii) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the any Applicable Resort; (xix) the violation or claimed violation of any Environmental Laws in regard to the an Applicable Resort; (xix) the preparation of an environmental audit or report on the an Applicable Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, an Applicable Underlying Developer, or another Person; (xiixi) the exercise by Borrower of any rights or remedies under the Applicable Underlying Transaction Documents or any Timeshare DocumentsApplicable Laws; or (xiiixii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors Guarantor any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section 6.1(m) shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition Borrower hereby expressly acknowledges and recognizes Borrower's responsibility for and agrees to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defend, indemnify, defend and hold harmless Lender and Lender, its subsidiaries, other Affiliates, 's officers, directors, shareholders, agents, employees, representatives, consultants, contractors, servants, successors and attorneys, assigns (as well as the respective heirsofficers, personal representativesdirectors, successorsshareholders, agents and assigns employees of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), Lender's successors and assigns) absolutely harmless from and againstagainst all costs, and agree promptly to pay on demand or reimburse each of them with respect toexpenses, any and all liabilities, claims, demands, losses, damages, costsfines, penalties and/or obligations incurred by or imposed upon or alleged to be due of Lender or Lender's successors and assigns in connection with the assertion of (a) any claim for brokerage, agency or finder's fees or commissions in connection with the Indebtedness or the Premises not arising by, through or under Lender; or (b) any claim for reasonable attorneys', appraisal, title insurance, inspection or other fees, costs and expenses incurred in connection with the administration, collection or refinancing of the Indebtedness, which arise by, through or on behalf of Borrower or any agent or representative of Borrower; (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of c) any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or claim arising out of or occurring because of or related to any Default hereunder;(d) the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Material on, from, or affecting the Premises or any other property; (e) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material; (f) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Material; or (g) any violations of laws, orders, an regulations, requirements, or demands of government authorities, which are based upon or in any way, directly way related to such Hazardous Material. Without limiting the remedies available to Lender with respect to the enforcement of its indemnification rights as stated herein or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, or the Collateral; (ii) the transactions contemplated under as stated in any of the Loan DocumentsSecurity Instruments, includingin the event any claim or demand is made or any other fact comes to the attention of Lender in connection with, without limitationrelating or pertaining to, those in any way relating to or arising out of the violation transactions contemplated by this Agreement, which Lender reasonably believes might involve or lead to some liability of Lender, Borrower shall, immediately upon receipt of written notification of any Applicable Laws; (iii) any breach such claim or demand, assume in full the personal responsibility for and, to the extent requested by Lender, the defense of any covenant such claim or agreement demand and pay in connection therewith any loss, damage, deficiency, liability or obligation, including without limitation, attorneys' fees and court costs incurred in connection therewith. In the incorrectness event of court action in connection with any such claim or inaccuracy demand Borrower shall assume, to the extent requested by Lender, the responsibility for the defense of any representation such action, and shall immediately satisfy and discharge any final decree or warranty judgment rendered therein. Lender may, in its sole and uncontrolled discretion, make any payments sustained or incurred by reason of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (includingforegoing, without limitationand Borrower shall immediately repay to Lender in cash the amount of such payment, with interest thereon at the rate specified in the Note to be applicable to past-due principal. Lender shall have the right to join Borrower as a party defendant in any certification of legal action brought against Lender, and Borrower delivered to Lender), including but not limited hereby consents to the failure entry of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of an order making Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant a party defendant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconductaction.
Appears in 1 contract
Samples: Loan Agreement (Newmark Homes Corp)
Indemnification of Lender. In addition Borrower hereby agrees to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defend, indemnifyprotect, indemnify and hold harmless LenderLenders, its subsidiaries, other Affiliatestheir directors, officers, directorsemployees, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, successors and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, or the Collateral; (ii) the transactions contemplated under any of the Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lenderparticipants in the Loans), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, harmless from and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) against any and all taxeslosses, including real estateliabilities, personal propertyfines, salesclaims, mortgageactions, excisejudgments, intangiblecosts, expenses or transfer taxes (but excluding all franchise taxesdamages, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort of any Hazardous Materials (except to the extent that liability such losses, liabilities, fines, claims, actions, judgments, costs, expenses or damages do not arise out of the Indemnified Lender Party with respect to such matter would not exist but for the acts a Lender’s willful misconduct or omissions of such Indemnified Lender Party gross negligence (as finally determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal asserted against a Lender by any person, entity or remediation Governmental Authority arising out of or in connection with Borrower’s ownership or use of any Hazardous Materials of the Properties, including, but not limited to, any liens (i.e., judgments, mechanics’ and materialmen’s liens, or otherwise), charges and encumbrances filed against any Property, and from any claims and demands for damages or injury, including claims for property damage, personal injury or wrongful death, arising out of or in connection with any accident or fire or other casualty on the Resort required to be performed pursuant to Properties or any Environmental Laws nuisance made or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (suffered thereon, including, without limitation, in any governmental case, reasonable attorneys’ fees, costs and expenses as aforesaid, whether at pretrial, trial or quasi-governmental agencyappellate level, commissionand such indemnity shall survive payment in full of the Loans. Lenders will be entitled to appear in any action or proceeding to defend themselves against such claims, department, instrumentality or body, court, arbitrator, or administrative board and all costs incurred by Lender in connection with or in any way arising out of the presencetherewith, useincluding reasonable attorneys’ fees, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard shall be paid by Borrower to the Resort; (xi) the preparation of an environmental audit respective Lender upon request. Lenders shall, at their option, and subject to Borrower’s reasonable prior written approval, be entitled to settle or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by compromise any asserted claim against such Lender, Borrower, and such settlement shall be binding upon Borrower for purposes of this indemnification. Payment thereof by a Lender or another Person; (xii) the exercise payment by Borrower of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by a Lender of any rights such judgment or remedies under this Agreement or any of claim successfully perfected against such Lender shall bear interest at the other Loan DocumentsDefault Interest Rate and shall be payable within ten (10) Business Days after such Lender’s demand therefor. Such indemnification Lender shall not give Borrower provide copies of invoices, statements or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) other records documenting such amounts to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of extent available to such Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment LetterCollateral, the Applicable Underlying Loan Documents, or the Applicable Underlying Loan Collateral; (ii) the transactions contemplated under any of the Loan Documents or the Applicable Underlying Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower or an Applicable Underlying Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (viivi) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the any Applicable Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viiivii) the removal or remediation of any Hazardous Materials from the an Applicable Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ixviii) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the any Applicable Resort; (xix) the violation or claimed violation of any Environmental Laws in regard to the an Applicable Resort; (xix) the preparation of an environmental audit or report on the an Applicable Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, an Applicable Underlying Borrower, or another Person; (xiixi) the exercise by Borrower of any rights or remedies under the Applicable Underlying Loan Documents or any Timeshare DocumentsApplicable Laws; or (xiiixii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors Guarantor any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section 5.1(m) shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby shall defend, indemnify, indemnify and hold harmless Lender, its subsidiaries, other Affiliatesaffiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and successors or assigns of any or all of them (hereinafter hereafter collectively referred to as the "“Indemnified Lender Parties"”), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, costs and expenses (including, including without limitation, reasonable attorneys' ’ and paralegals' ’ fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, way related or attributable to: to (i) this Agreement, the other Loan Documents, the Commitment Letter, or the Collateral; (ii) the transactions contemplated under any of the Loan Documents or any of the Timeshare Documents, including, including without limitation, those in any way relating to or arising out of the violation of any Applicable Lawsfederal or state laws, including the Timeshare Act; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or and warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, including without limitation, limitation any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, intangible or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that charges, including, without limitation under the Timeshare Act, which may at any time arise or become due prior to the payment, performance, performance and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, disposal or presence on, under, under or about the Resort Resorts of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction)Materials; (viii) the removal or remediation of any Hazardous Materials from the Resort Resorts required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, including without limitation, limitation any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, arbitrator or administrative board (collectively, a “Governmental Agency”), in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, under or affecting the ResortResorts; (x) the violation or claimed violation of any Environmental Laws in regard to the ResortResorts; or (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental LawsResorts, whether conducted by Lender, BorrowerBorrower or a third-party, or another Person; (xii) the exercise by Borrower implementation of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documentsenvironmental audit recommendations. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. Lender agrees to give Borrower written notice of the assertion of any claim or the commencement of any action or lawsuit described in this Section. It is the express intention of the parties hereto that the indemnity provided for in this Section, as well as the disclaimers of liability referred to in this Agreement, are intended to and shall protect and indemnify Lender from the consequences of Lender’s own negligence, whether or not that negligence is the sole or concurring cause of any liability, obligation, loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement provided, however, that Borrower shall not be required to protect and indemnify Lender or any Lender from the consequences of Lender’s or any such Lender’s gross negligence, where that gross negligence is the sole cause of the liability, obligation, loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement for which indemnification or protection would otherwise be required. The provisions of this Section shall survive the full payment, performance, performance and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Samples: Loan and Security Agreement (Silverleaf Resorts Inc)
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, Documents or the Collateral; (ii) the transactions contemplated under any of the Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including including, but not limited to to, the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.;
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of the Lender, the Borrower and Guarantors hereby shall defend, indemnify, indemnify and hold harmless Lender, its subsidiaries, other Affiliatesaffiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and successors or assigns of any or all of them (hereinafter hereafter collectively referred to as the "Indemnified Lender Parties"), from and 47 49 against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, costs and expenses (including, including without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, way related or attributable to: to (i) this Agreement, the other Loan Documents, the Commitment Letter, Loan or the Collateral; (ii) the transactions contemplated under any of the Loan Documents or any of the Timeshare Documents, including, including without limitation, those in any way relating to or arising out of the violation of any Applicable Lawsfederal or state laws, including the Timeshare Act; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or and warranty of the Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, including without limitation, limitation any certification of the Borrower delivered to a Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, intangible or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that charges, including, without limitation under the Timeshare Act, which may at any time arise or become due prior to the payment, performance, performance and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, disposal or presence on, under, under or about the Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction)Materials; (viii) the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, including without limitation, limitation any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, arbitrator or administrative board (collectively, a "Governmental Agency"), in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, under or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; or (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental LawsResort, whether conducted by Lender, BorrowerBorrower or a third-party, or another Person; (xii) the exercise by Borrower implementation of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documentsenvironmental audit recommendations. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. Lender agrees to give Borrower written notice of the assertion of any claim or the commencement of any action or lawsuit described in this Section. It is the express intention of the parties hereto that the indemnity provided for in this Section, as well as the disclaimers of liability referred to in this Agreement, are intended to and shall protect and indemnify Lender from the consequences of Lender's own negligence, whether or not that negligence is the sole or concurring cause of any liability, obligation. loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement provided, however, that Borrower shall not be 48 50 required to protect and indemnify Lender from the consequences of Lender's gross negligence, where that gross negligence is the sole cause of the liability, obligation, loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement for which indemnification or protection would otherwise be required. The provisions of this Section shall survive the full payment, performance, performance and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Samples: Loan and Security Agreement (Silverleaf Resorts Inc)
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, servants and attorneys, attorneys as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment LetterCommitment, the Collateral, the Applicable Underlying Loan Documents, or the Applicable Underlying Loan Collateral; (ii) the transactions contemplated under any of the Loan Documents or the Applicable Underlying Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worthcapital, gross receipts taxes, taxes and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower or an Applicable Underlying Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the any Applicable Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the an Applicable Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the any Applicable Resort; (x) the violation or claimed violation of any Environmental Environmen tal Laws in regard to the an Applicable Resort; (xi) the preparation of an environmental audit or report on the an Applicable Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, an Applicable Underlying Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under the Applicable Underlying Loan Documents or any Timeshare DocumentsApplicable Laws; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification indemnifica tion may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contraryforegoing, Borrower shall not indemnify or and hold Lender harmless from and against harmless, as set forth herein in the event any liabilities, claims, demands, losses, damages, costs, costs or expenses incurred by Lender solely Borrower are as a direct result of Lender's own gross negligence or willful misconductmisconduct with respect to the Loan or the Loan Documents.
Appears in 1 contract
Indemnification of Lender. (i) In addition to (and not in lieu of) any its other provisions hereof or of any other Loan Document providing for indemnification in favor of Lenderobligations under this Credit Agreement, the Borrower and Guarantors hereby defendagrees to protect, indemnify, pay and hold the Lender harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, against any and all liabilities, claims, demands, lossesliabilities, damages, losses, costs, charges and expenses (including, without limitation, including reasonable attorneys' and paralegals' fees and costs)actually incurred) that the Lender may incur or be subject to as a consequence, actions direct or causes indirect, of action (A) the issuance of any and every kind or nature whatsoever asserted against or incurred by any Letter of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment LetterCredit, or (B) the Collateral; failure of the Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omissions herein called "GOVERNMENT ACTS").
(ii) As between the transactions contemplated under any Borrower and the Lender, the Borrower shall assume all risks of the Loan Documentsacts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The Lender shall not be responsible for (except in the case of (A), (B), and (C) below if the Lender has actual knowledge to the contrary): (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of a Letter of Credit to comply fully with conditions required in order to draw upon a Letter of Credit; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (G) any consequences arising from causes reasonably beyond the control of the Lender, including, without limitation, those in any way relating to or arising out Government Acts. None of the violation above shall affect, impair, or prevent the vesting of any Applicable Laws; the Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any breach action taken or omitted by the Lender, under or in connection with any Letter of any covenant or agreement Credit or the incorrectness related certificates, if taken or inaccuracy of omitted in good faith, shall not put the Lender under any representation or warranty of resulting liability to the Borrower or any Guarantor contained in this Agreement or any other Credit Party. It is the intention of the other Loan Documents (parties that this Credit Agreement shall be construed and applied to protect and indemnify the Lender against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Borrower, including, without limitation, any certification and all risks of Borrower delivered to Lender)the acts or omissions, including but not limited to the failure whether rightful or wrongful, of any Pledged Note Receivable present or future Government Acts. The Lender shall not, in any way, be liable for any failure by the Lender or anyone else to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest pay any drawing under any Letter of Borrower therein in accordance with the provisions hereof Credit as a result of any Government Acts or any other cause reasonably beyond the control of the other Loan Documents; Lender.
(iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes Nothing in this subjection (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior j) is intended to limit the payment, performance, and discharge in full reimbursement obligation of the Obligations; Borrower contained in this Section 2.2. The obligations of the Borrower under this subjection (j) shall survive the termination of this Credit Agreement. No act or omission of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Lender to enforce any right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the breach contrary contained in this subsection (j), the Borrower shall have no obligation to indemnify the Lender in respect of any representation or warranty set forth herein regarding any Environmental Laws; (vi) liability incurred by the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort of any Hazardous Materials (except Lender to the extent that liability arising out of the Indemnified Lender Party with respect to such matter would not exist but for gross negligence or willful misconduct of the acts or omissions of such Indemnified Lender Party Lender, as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) . Nothing in this Agreement shall relieve the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of liability to the other Loan Documents. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement respect of any dispute or proceeding for action taken by the Lender which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own action constitutes gross negligence or willful misconductmisconduct of the Lender or a violation of the UCP or Uniform Commercial Code (as applicable), as determined by a court of competent jurisdiction.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, the Borrower and Guarantors hereby Guarantor shall defend, indemnify, indemnify and hold harmless Lender, its subsidiaries, other Affiliatesaffiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and successors or assigns of any or all of them (hereinafter hereafter collectively referred to as 59 61 the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, costs and expenses (including, including without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, way related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, or the Collateral; (ii) the transactions contemplated under any of the Loan Documents or any of the Timeshare Documents, including, including without limitation, those in any way relating to or arising out of the violation of any Applicable Lawsfederal or state laws, including the Timeshare Act; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or and warranty of the Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, including without limitation, limitation any certification of the Borrower or Guarantor delivered to the Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, intangible or transfer taxes (but excluding all exclusive of income, franchise or similar taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that charges, including, without limitation under the Timeshare Act, with respect to the Property or the Loan Documents which may at any time arise or become due prior to the payment, performance, performance and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, disposal or presence on, under, under or about the Resort Property of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction)Materials; (viii) the removal or remediation of any Hazardous Materials from the Resort Property required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as reasonably required by Lender; (ix) claims asserted by any Person (including, including without limitation, limitation any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, arbitrator or administrative board (collectively, a "GOVERNMENTAL AGENCY"), in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, under or affecting the ResortProperty; (x) the violation or claimed violation of any Environmental Laws in regard to the ResortProperty; or (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental LawsProperty, whether conducted by Lender, Borrower, Guarantor or another Person; (xii) a third-party, or the exercise by Borrower implementation of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documentsenvironmental audit recommendations. Such indemnification shall not give Borrower or Guarantors any Guarantor the right to participate in the selection of counsel for Lender or and in the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. Lender agrees to give Borrower written notice of the assertion of any claim or the commencement of any action or lawsuit described in this Section. It is the express intention of the parties hereto that the indemnity provided for in this Section, as well as the disclaimers of liability referred to in this Agreement, are intended to and shall protect and indemnify Lender from the consequences of Lender's own negligence, but not Lender's gross negligence or willful misconduct, whether or not that negligence is the sole or concurring cause of any liability, obligation, loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement. The provisions of this Section shall survive the full payment, performance, performance and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition to (Borrower and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Guarantor shall jointly and severally, indemnify Lender and hold Lender, Borrower and Guarantors hereby defend, indemnify, and hold harmless Lender, its subsidiaries, other Affiliatesaffiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and successors or assigns of any or all of them (hereinafter hereafter collectively referred to as the "Indemnified Lender PartiesINDEMNIFIED LENDER PARTIES"), ) harmless from and against, and agree promptly to pay on demand or reimburse each of them with respect to, against any and all liabilities, claims, demandsIndebtedness, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action disbursements of any and every kind or nature whatsoever which may be imposed on, incurred by or asserted against or incurred by any of them by reason of Indemnified Lender Parties, in any way relating to or arising out of or in any way, directly or indirectly, related or attributable to: (ia) this Agreement, Agreement and the other Loan Documents, the Commitment Letter, or the Collateral; Documents and/or (iib) any of the transactions contemplated under any of the Loan Documentsherein, including, without limitation, therein or thereby (including those in any way relating to or arising out of the violation by Borrower of any Applicable Other Loans, or federal or state laws including Environmental Laws; . Without limiting the generality of the foregoing, this indemnity shall include all liabilities, Indebtedness, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses, and disbursements asserted against or incurred by any Indemnified Lender Parties by reason of (iiii) any breach of any covenant obligation or agreement or the incorrectness or inaccuracy of any representation or and warranty of the Borrower or any the Guarantor contained in this Agreement or any of the other Loan Documents (including, including without limitation, limitation any certification of the Borrower or the Guarantor delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (ivii) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, intangible or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that charges, including, without limitation under the Casino Act, which may at any time arise or become due prior to the payment, performance, performance and discharge in full of the Obligations; (viii) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (viiv) the failure of Borrower or Guarantor to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (viiv) the use, generation, storage, release, threatened release, discharge, disposal, disposal or presence on, under, under or about the Resort Casino of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction)Materials; (viiivi) the removal or remediation of any Hazardous Materials from the Resort Casino required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ixvii) claims asserted by any Person (includingincluding without limitation any Governmental Authority, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, under or affecting the ResortCasino; (xviii) the violation or claimed violation of any Environmental Laws in regard to the ResortCasino; or (xiix) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental LawsCasino, whether conducted by Lender, BorrowerBorrower or a third-party, or another Person; (xii) the exercise by Borrower implementation of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documentsenvironmental audit recommendations. Such indemnification shall not give Borrower or Guarantors Guarantor any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed; provided, however, that Borrower and Guarantor shall not be required to protect and indemnify Lender from the consequences of Lender's negligence, where that negligence is finally adjudicated to constitute the sole cause of the liability, obligation, loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement for which indemnification or protection would otherwise be required. The provisions of this Section shall survive the full payment, performance, performance and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlantic Coast Entertainment Holdings Inc)
Indemnification of Lender. In From and at all times after the date of this Agreement, and in addition to (all of Xxxxxx’s other rights and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lenderremedies against Xxxxxxxx, Borrower and Guarantors hereby defend, indemnify, Xxxxxxxx agrees to indemnify and hold harmless LenderLender and each director, its subsidiariesofficer, other Affiliatesemployee, officers, directors, agents, employees, representatives, consultants, contractors, servants, agent and attorneys, as well as the respective heirs, personal representatives, successors, and assigns Affiliate of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, against any and all liabilities, claims, demands, losses, damages, costsliabilities, costs and expenses of any kind or nature whatsoever (including, without limitation, reasonable attorneys' ’ fees, costs and paralegals' fees and costs), actions expenses) incurred by or causes of action of any and every kind or nature whatsoever asserted against Lender or incurred by any of them by reason such director, officer, employee, agent or Affiliate, from and after the date hereof, whether direct, indirect or consequential, as a result of or arising out of from or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, or the Collateral; (ii) the transactions contemplated under any of the Loan Documents, including, without limitation, those in any way relating to any suit, action or proceeding (including any inquiry or investigation) by any Person, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any Person under any statute or regulation, including, but not limited to, any federal or state laws, or under any common law or equitable cause or otherwise, arising out from the failure of the violation Borrower to abide by any of the Borrower’s obligations hereunder or under any Applicable Laws; (iii) Loan Document or a misrepresentation hereunder or under any breach Loan Document, or in connection with the negotiation, preparation, execution or performance of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (includingor any transactions contemplated herein or therein, without limitationwhether or not Lender or any such director, officer, employee, agent or Affiliate is a party to any certification of Borrower delivered to Lender)such action, including but not limited to proceeding, suit or the failure target of any Pledged Note Receivable such inquiry or investigation; provided, however, that Xxxxxx shall not have the right to be legally enforceable by indemnified hereunder for any liability resulting from the gross negligence or willful misconduct of Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as finally determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination its breach of this Agreement, and shall continue thereafter to the extent, in full force and effecteither case, a court of competent jurisdiction, pursuant to a final non-appealable order, determines that Lender breached its obligations to Borrower hereunder. Notwithstanding All of the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or costs and expenses incurred of Lender shall be payable by Lender solely as a direct result of Lender's own gross negligence or willful misconductBorrower upon demand by Xxxxxx and shall be additional Obligations hereunder.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any ------------------------- other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors Guarantor hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliatesaffiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree ------------------- agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demandsindebtedness, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action disbursements of any and every kind or nature whatsoever which may be imposed on, incurred by or asserted against or incurred by any of them by reason of them, in any way relating to or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment Letter, Documents or the Collateral; (ii) the transactions contemplated under any of the Loan Documents, Documents including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower or Guarantor delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the LOAN AND SECURITY AGREEMENT-Page 43 --------------------------- failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Resort Project of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction); (viii) the removal or remediation of any Hazardous Materials from the Resort Project required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the ResortProject; (x) the violation or claimed violation of any Environmental Laws in regard to the ResortProject; (xi) the preparation of an environmental audit or report on the Resort Project not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, or another Person; (xii) the exercise breach or violation by Borrower of any rights or remedies under any Timeshare DocumentsApplicable Laws; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification Upon receiving knowledge of any suit, claim or demand asserted by a third party that Lender believes is covered by this indemnity, and subject to the condition that no Event of Default under this Agreement shall not then exist, Lender shall give Borrower notice of the matter and an opportunity to defend it, at Borrower's sole cost and expense, with legal counsel satisfactory to Lender. Notwithstanding any defense by Borrower of any such suit, claim or Guarantors any demand, Lender shall have the right to participate in the selection of counsel for Lender or any material decision affecting the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED FOR HEREIN IS INTENDED TO AND SHALL PROTECT AND INDEMNIFY LENDER FROM THE CONSEQUENCES OF LENDER'S OWN NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF ANY LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, ACTION, JUDGMENT, SUIT, CLAIM, COST, EXPENSE OR DISBURSEMENT. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of the Lender, the Borrower and Guarantors hereby shall defend, indemnify, indemnify and hold harmless Lender, its subsidiaries, other Affiliatesaffiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and successors or assigns of any or all of them (hereinafter hereafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, costs and expenses (including, including without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, way related or attributable to: to (i) this Agreement, the other Loan Documents, the Commitment Letter, Loan or the Collateral; (ii) the transactions contemplated under any of the Loan Documents or any of the Timeshare Documents, including, including without limitation, those in any way relating to or arising out of the violation of any Applicable Lawsfederal or state laws, including the Timeshare Act; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or and warranty of the Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, including without limitation, limitation any certification of the Borrower delivered to a Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, intangible or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that charges, including, without limitation under the Timeshare Act, which may at any time arise or become due prior to the payment, performance, performance and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, disposal or presence on, under, under or about the Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction)Materials; (viii) the removal or remediation of any Hazardous Materials from the Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, including without limitation, limitation any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, arbitrator or administrative board (collectively, a "Governmental Agency"), in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, under or affecting the Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the Resort; or (xi) the preparation of an environmental audit or report on the Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental LawsResort, whether conducted by Lender, BorrowerBorrower or a third-party, or another Person; (xii) the exercise by Borrower implementation of any rights or remedies under any Timeshare Documents; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documentsenvironmental audit recommendations. Such indemnification shall not give Borrower or Guarantors any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. Lender agrees to give Borrower written notice of the assertion of any claim or the commencement of any action or lawsuit described in this Section (v). It is the express intention of the parties hereto that the indemnity provided for in this Section (v), as well as the disclaimers of liability referred to in this Agreement, are intended to and shall protect and indemnify Lender from the consequences of Lender's own negligence, whether or not that negligence is the sole or concurring cause of any liability, obligation. loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement provided, however, that Borrower shall not be required to protect and indemnify Lender from the consequences of Lender's gross negligence, where that gross negligence is the sole cause of the liability, obligation, loss, damage, penalty, action, judgment, suit, claim, cost, expense or disbursement for which indemnification or protection would otherwise be required. The provisions of this Section (v) shall survive the full payment, performance, performance and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
Samples: Loan and Security Agreement (Silverleaf Resorts Inc)
Indemnification of Lender. In addition to (and not in lieu of) any other provisions hereof or of any other Loan Document providing for indemnification in favor of Lender, Borrower and Guarantors hereby defenddefends, indemnifyindemnifies, and hold holds harmless Lender, its subsidiaries, other Affiliates, officers, directors, agents, employees, representatives, consultants, contractors, servants, and attorneys, as well as the respective heirs, personal representatives, successors, and assigns of any or all of them (hereinafter collectively referred to as the "Indemnified Lender Parties"), from and against, and agree agrees promptly to pay on demand or reimburse each of them with respect to, any and all liabilities, claims, demands, losses, damages, costs, and expenses (including, without limitation, reasonable attorneys' and paralegals' fees and costs), actions or causes of action of any and every kind or nature whatsoever asserted against or incurred by any of them by reason of or arising out of or in any way, directly or indirectly, related or attributable to: (i) this Agreement, the other Loan Documents, the Commitment LetterCommitment, the Collateral, the Applicable Underlying Loan Documents, or the Applicable Underlying Loan Collateral; (ii) the transactions contemplated under any of the Loan Documents or the Applicable Underlying Loan Documents, including, without limitation, those in any way relating to or arising out of the violation of any Applicable Laws; (iii) any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation or warranty of Borrower or any Guarantor contained in this Agreement or any of the other Loan Documents (including, without limitation, any certification of Borrower delivered to Lender), including but not limited to the failure of any Pledged Note Receivable to be legally enforceable by Lender in the event that it succeeds to all right, title, and interest of Borrower therein in accordance with the provisions hereof or any of the other Loan Documents; (iv) any and all taxes, including real estate, personal property, sales, mortgage, excise, intangible, or transfer taxes (but excluding all franchise taxes, taxes on capital and net worth, gross receipts taxes, and taxes imposed on gross or net income), and any and all fees or charges that may at any time arise or become due prior to the payment, performance, and discharge in full of the Obligations; (v) the breach of any representation or warranty as set forth herein regarding any Environmental Laws; (vi) the failure of Borrower or an Applicable Underlying Borrower to perform any obligation or covenant herein required to be performed pursuant to any Environmental Laws; (vii) the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the any Applicable Resort of any Hazardous Materials (except to the extent that liability of the Indemnified Lender Party with respect to such matter would not exist but for the acts or omissions of such Indemnified Lender Party as determined in a final, non-appealable adjudication by a court of competent jurisdiction)) ; (viii) the removal or remediation of any Hazardous Materials from the an Applicable Resort required to be performed pursuant to any Environmental Laws or as a result of recommendations of any environmental consultant or as required by Lender; (ix) claims asserted by any Person (including, without limitation, any governmental or quasi-governmental agency, commission, department, instrumentality or body, court, arbitrator, or administrative board in connection with or any in any way arising out of the presence, use, storage, disposal, generation, transportation, release, or treatment of any Hazardous Materials on, in, under, or affecting the any Applicable Resort; (x) the violation or claimed violation of any Environmental Laws in regard to the an Applicable Resort; (xi) the preparation of an environmental audit or report on the an Applicable Resort not to exceed one (1) per calendar year and premised upon the Lender's reasonable belief of the existence of a violation of Environmental Laws, whether conducted by Lender, Borrower, an Applicable Underlying Borrower, or another Person; (xii) the exercise by Borrower of any rights or remedies under the Applicable Underlying Loan Documents or any Timeshare DocumentsApplicable Laws; or (xiii) the exercise by Lender of any rights or remedies under this Agreement or any of the other Loan Documents. Such indemnification shall not give Borrower or Guarantors Guarantor any right to participate in the selection of counsel for Lender or the conduct or settlement of any dispute or proceeding for which indemnification may be claimed. The provisions of this Section shall survive the full payment, performance, and discharge of the Obligations and the termination of this Agreement, and shall continue thereafter in full force and effect. Notwithstanding the foregoing provisions of this Section 6.1(q) to the contrary, Borrower shall not indemnify or hold Lender harmless from and against any liabilities, claims, demands, losses, damages, costs, or expenses incurred by Lender solely as a direct result of Lender's own gross negligence or willful misconduct.
Appears in 1 contract
