Common use of Indemnification; Release Clause in Contracts

Indemnification; Release. BORROWER HEREBY INDEMNIFIES AND AGREES TO DEFEND AND HOLD HARMLESS BANK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL CLAIMS AND DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH ANY SUCH INDEMNIFIED PARTY MAY INCUR (OR WHICH MAY BE CLAIMED AGAINST BANK OR ANY SUCH INDEMNIFIED PARTY BY ANY PERSON WHATSOEVER), REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES, IN CONNECTION WITH THE EXECUTION AND DELIVERY OF ANY LETTER OF CREDIT OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT; PROVIDED THAT BORROWER SHALL NOT BE REQUIRED TO INDEMNIFY ANY PARTY SEEKING INDEMNIFICATION FOR ANY CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES TO THE EXTENT, BUT ONLY TO THE EXTENT, CAUSED BY (I) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION, OR (II) BY THE FAILURE BY THE PARTY SEEKING INDEMNIFICATION TO PAY UNDER ANY LETTER OF CREDIT AFTER THE PRESENTATION TO IT OF A REQUEST REQUIRED TO BE PAID UNDER APPLICATION LAW.

Indemnification; Release. BORROWER HEREBY INDEMNIFIES 1. YOU, YOUR OWNER/OPERATOR AND AGREES TO DEFEND EACH OF YOUR INVESTORS SHALL, AT ALL TIMES, DEFEND, INDEMNIFY, RELEASE AND HOLD HARMLESS BANK TO THE FULLEST EXTENT PERMITTED BY LAW XXXXXX’X, ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS AND ITS ASSIGNS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, SERVANTS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, AND REPRESENTATIVES (COLLECTIVELY, THE “INDEMNIFIED & RELEASED PARTIES” OR “INDEMNIFIED & RELEASED PARTY”) FROM ALL “LOSSES AND EXPENSES” (AS DEFINED IN ARTICLE 20.6.5 BELOW) INCURRED IN CONNECTION WITH ANY ACTION, SUIT, PROCEEDING, CLAIM, DEMAND, INVESTIGATION OR INQUIRY (FORMAL OR INFORMAL), OR ANY SETTLEMENT THEREOF (WHETHER OR NOT A FORMAL PROCEEDING OR ACTION HAS BEEN INSTITUTED), WHICH ARISES OUT OF OR IS BASED UPON ANY OF THE FOLLOWING: A. NEGLIGENT ACTS, ERRORS OR OMISSIONS, WILLFUL MISCONDUCT, OR BREACH OF CONTRACT OR WARRANTY BY YOU, ANY OF YOUR SUBSIDIARIES AND AFFILIATES, YOUR OWNER/OPERATOR AND ANY OF YOUR INVESTORS AND YOUR OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, AGENTS, INDEPENDENT CONTRACTORS, SERVANTS, EMPLOYEES, AGENTS AND REPRESENTATIVES AND THOSE OF YOUR SUBSIDIARIES AND AFFILIATES IN CONNECTION WITH THIS AGREEMENT AND THE ESTABLISHMENT AND OPERATION OF YOUR RESTAURANT, INCLUDING WITHOUT LIMITATION, MATTERS ARISING OUT OF, OR CLAIMED TO BE ARISING OUT OF, ANY INDEMNIFIED & RELEASED PARTY’S OWN NEGLIGENT ACTS, ERRORS OR OMISSIONS, BREACH OF WARRANTY, STRICT LIABILITY, OR BREACH OF CONTRACT. YOUR, YOUR OWNER/OPERATOR’S AND ANY OF YOUR INVESTOR’S OBLIGATION TO DEFEND AND INDEMNIFY AN INDEMNIFIED & RELEASED PARTY FOR ITS OWN NEGLIGENCE APPLIES WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE. B. THE INFRINGEMENT, ALLEGED INFRINGEMENT OR ANY OTHER VIOLATION OR ALLEGED VIOLATION BY YOU OR YOUR OWNER/OPERATOR OR ANY OF YOUR INVESTORS OF ANY PATENT, MARK OR COPYRIGHT OR OTHER PROPRIETARY RIGHT OWNED OR CONTROLLED BY THIRD PARTIES (EXCEPT AS SUCH MAY OCCUR WITH RESPECT TO ANY RIGHTS IN THE PROPRIETARY MARKS OR COPYRIGHTS GRANTED UNDER THIS AGREEMENT), INCLUDING WITHOUT LIMITATION MATTERS CAUSED BY OR ARISING OUT OF, OR CLAIMED TO BE CAUSED BY OR ARISING OUT OF, THE INFRINGEMENT OR VIOLATION OF ANY PATENT, TRADEMARK OR COPYRIGHT BY THE INDEMNIFIED & RELEASED PARTIES; C. THE VIOLATION, BREACH OR ALLEGED VIOLATION OR BREACH BY YOU, YOUR OWNER/OPERATOR OR ANY OF YOUR INVESTORS OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION, RULING, STANDARD OR DIRECTIVE OR ANY INDUSTRY STANDARD, INCLUDING WITHOUT LIMITATION (I) MATTERS ARISING FROM ALCOHOLIC BEVERAGE SERVICE AND AGAINST CONSUMPTION AT THE RESTAURANT; (2) MATTERS ARISING OUT OF A DATA BREACH, INCLUDING, BUT NOT LIMITED TO DATA NOTIFICATION FINES & PENALTIES, AS WELL AS THIRD PARTY LAWSUITS BROUGHT BY CUSTOMERS, MERCHANTS, AND CREDIT CARD BRANDS; (3) ANY DISPUTE ARISING OUT OF EMPLOYMENT, INCLUDING, BUT NOT LIMITED TO ADMINISTRATIVE CLAIMS AND THIRD PARTY CLAIMS RELATING TO WAGE CLAIMS, UNFAIR LABOR PRACTICES (SUCH AS CLAIMS UNDER THE NATIONAL LABOR RIGHTS ACT), AGE DISCRIMINATION, DISCRIMINATION, DISABILITY, AND HARASSMENT; AND (4) MATTERS ARISING OUT OF DISCRIMINATION BASED ON PUBLIC ACCOMMODATION. THIS RELEASE AND INDEMNIFICATION PROVISION EXPRESSLY INCLUDES WITHOUT LIMITATION MATTERS ARISING OUT OF, OR CLAIMED TO BE ARISING OUT OF, THE INDEMNIFIED & RELEASED PARTIES’ OWN NEGLIGENT ACTS, ERRORS, VIOLATIONS, BREACHES, OR INTENTIONAL CONDUCT WITH RESPECT TO SECTIONS (1)-(4) OF THIS PROVISION; AND D. THE VIOLATION OR BREACH BY YOU, YOUR OWNER/OPERATOR OR BY ANY OF YOUR INVESTORS OF ANY WARRANTY, REPRESENTATION, AGREEMENT OR OBLIGATION IN THIS AGREEMENT OR IN ANY DEVELOPMENT AGREEMENT OR OTHER AGREEMENT BETWEEN YOU AND XXXXXX’X OR ITS SUBSIDIARIES OR AFFILIATES. 2. YOU, YOUR OWNER/OPERATOR AND EACH OF YOUR INVESTORS AGREE TO GIVE XXXXXX’X IMMEDIATE NOTICE OF ANY SUCH ACTION, SUIT, PROCEEDING, CLAIM, DEMAND, INQUIRY OR INVESTIGATION. AT THE EXPENSE AND RISK OF YOU, YOUR OWNER/OPERATOR AND EACH OF YOUR INVESTORS, THE INDEMNIFIED & RELEASED PARTIES MAY ELECT TO CONTROL (BUT UNDER NO CIRCUMSTANCE IS OBLIGATED TO UNDERTAKE), AND ASSOCIATE COUNSEL OF THEIR OWN CHOOSING WITH RESPECT TO, THE DEFENSE AND/OR SETTLEMENT OF ANY SUCH ACTION, SUIT, PROCEEDING, CLAIM, DEMAND, INQUIRY OR INVESTIGATION. SUCH AN UNDERTAKING BY THE INDEMNIFIED & RELEASED PARTIES SHALL, IN NO MANNER OR FORM, DIMINISH THE OBLIGATION OF YOU, YOUR OWNER/OPERATOR AND EACH OF YOUR INVESTORS TO INDEMNIFY XXXXXX’X AND TO HOLD IT HARMLESS. 3. IN ORDER TO PROTECT PERSONS OR PROPERTY, OR ITS REPUTATION OR GOODWILL, OR THE REPUTATION OR GOODWILL OF OTHERS, AN THE INDEMNIFIED & RELEASED PARTY MAY, AT ANY TIME AND WITHOUT NOTICE, AS IT IN ITS JUDGMENT DEEMS APPROPRIATE, CONSENT OR AGREE TO SETTLEMENTS OR TAKE SUCH OTHER REMEDIAL OR CORRECTIVE ACTION AS IT DEEMS EXPEDIENT WITH RESPECT TO ANY ACTION, SUIT, PROCEEDING, CLAIM, DEMAND, INQUIRY OR INVESTIGATION IF, IN SUCH INDEMNIFIED & RELEASED PARTY’S SOLE JUDGMENT, THERE ARE REASONABLE GROUNDS TO BELIEVE THAT: A. ANY OF THE ACTS OR CIRCUMSTANCES IN ARTICLE 20.6.1 ABOVE HAVE OCCURRED; OR B. ANY ACT, ERROR OR OMISSION AS DESCRIBED IN ARTICLE 20. 6.1. A MAY RESULT DIRECTLY OR INDIRECTLY IN DAMAGE, INJURY OR HARM TO ANY PERSON OR ANY PROPERTY. 4. ALL LOSSES AND EXPENSES INCURRED UNDER THIS ARTICLE 20 SHALL BE CHARGEABLE TO AND PAID BY YOU, YOUR OWNER/OPERATOR OR ANY OF YOUR INVESTORS PURSUANT TO YOUR OBLIGATIONS OF INDEMNITY UNDER THIS ARTICLE, REGARDLESS OF ANY ACTION, ACTIVITY OR DEFENSE UNDERTAKEN BY AN INDEMNIFIED & RELEASED PARTY OR THE SUBSEQUENT SUCCESS OR FAILURE OF SUCH ACTION, ACTIVITY OR DEFENSE. 5. AS USED IN THIS ARTICLE 20, THE PHRASE “LOSSES AND EXPENSES” SHALL INCLUDE, WITHOUT LIMITATION, ALL LOSSES, COMPENSATORY, EXEMPLARY OR PUNITIVE DAMAGES, FINES, CHARGES, COSTS, EXPENSES, LOST PROFITS, LEGAL FEES, COURT COSTS, SETTLEMENT AMOUNTS, JUDGMENTS, COMPENSATION FOR DAMAGES TO AN INDEMNIFIED PARTY’S REPUTATION AND GOODWILL, COSTS OF OR RESULTING FROM DELAYS, FINANCING, COSTS OF ADVERTISING MATERIAL AND MEDIA TIME/SPACE AND COSTS OF CHANGING, SUBSTITUTING OR REPLACING THE SAME, AND ANY AND ALL CLAIMS EXPENSES OF RECALL, REFUNDS, COMPENSATION, PUBLIC NOTICES, AND DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES WHICH ANY OTHER SUCH INDEMNIFIED PARTY MAY INCUR (OR WHICH MAY BE CLAIMED AGAINST BANK OR ANY SUCH INDEMNIFIED PARTY BY ANY PERSON WHATSOEVER), REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES, AMOUNTS INCURRED IN CONNECTION WITH THE EXECUTION AND DELIVERY OF MATTERS DESCRIBED. 6. UNDER NO CIRCUMSTANCES SHALL ANY LETTER OF CREDIT OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT; PROVIDED THAT BORROWER SHALL NOT INDEMNIFIED & RELEASED PARTY BE REQUIRED TO INDEMNIFY SEEK RECOVERY FROM THIRD PARTIES OR OTHERWISE MITIGATE THEIR LOSSES TO MAINTAIN A CLAIM AGAINST YOU, YOUR OWNER/OPERATOR OR ANY PARTY SEEKING INDEMNIFICATION FOR ANY CLAIMSOF YOUR INVESTORS. YOU, DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES TO THE EXTENT, BUT ONLY TO THE EXTENT, CAUSED BY (I) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE YOUR OWNER/OPERATOR AND EACH OF THE PARTY SEEKING INDEMNIFICATION, OR (II) BY YOUR INVESTORS AGREE THAT THE FAILURE TO PURSUE SUCH RECOVERY OR MITIGATE LOSS WILL IN NO WAY REDUCE THE AMOUNTS RECOVERABLE FROM YOU, YOUR OWNER/OPERATOR OR ANY OF YOUR INVESTORS BY ANY INDEMNIFIED & RELEASED PARTY PURSUANT TO THIS ARTICLE. 7. EACH OF THESE INDEMNITY OBLIGATIONS IS SEPARATE FROM, AND INDEPENDENT OF, THE PARTY SEEKING INDEMNIFICATION TO PAY UNDER ANY LETTER OF CREDIT AFTER THE PRESENTATION TO IT OF A REQUEST REQUIRED TO BE PAID UNDER APPLICATION LAWINSURANCE OBLIGATIONS FOUND IN THIS AGREEMENT. 8. You and your Investors and your Owner/Operator expressly agree that the terms of this Article 20.6 shall expressly survive the termination, expiration or transfer of this Agreement or any interest herein.