Indemnity; Expenses. A. To the extent not caused or occasioned by the gross negligence or willful misconduct of the Indemnified Persons or any Indemnified Person (as such terms are defined below), the Company shall indemnify and hold the Issuer and its governing body, officers, agents, and employees (hereinafter, the “Indemnified Persons” or “Indemnified Person”) harmless from and against any and all claims, damages, demands, expenses, liabilities and losses of every kind, character and nature asserted by or on behalf of any person in connection with (i) the issuance, offering, sale, delivery, or remarketing of the Bonds, the Indenture and this Lease and the obligations imposed on the Issuer hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Persons or an Indemnified Person with respect to the Company, the Leased Property, or the Bonds, including, but not limited to, statements or representations of facts, financial information, or corporate affairs or any breach or default on the part of the Company in the performance of any representation, covenant or agreement of the Company under this Lease, or any related document, or arising from any acts or failure to act by the Company, or any of its agents, contractors, servants, employees or licensees; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; and (iv) any loss or damage incurred by the Issuer as a result of violation by the Company of the provisions of Section 3.2, or arising out of, resulting from, or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, construction, equipping and renovation or sale of the Leased Property or any part thereof. The Company also covenants and agrees, at its expense, to pay, and to indemnify the Indemnified Persons from and against, all costs, reasonable attorney fees, expenses and liabilities incurred in any suit, action or proceeding brought by reason of any such claim. If any such suit, action or proceeding is brought against the Issuer or any Indemnified Person, the Issuer or such Indemnified Person shall, within ten (10) days of being notified of such suit, action or proceeding against it, notify the Company, in writing, and the Company shall promptly assume or cause the assumption of the defense thereof, including the employment of counsel chosen by the Company and approved in writing by the Issuer or such Indemnified Person (provided that such approval by the Issuer or such Indemnified Person shall not be unreasonably withheld), the payment of all reasonable expenses of such counsel and the right of the Issuer or such Indemnified Person to participate in negotiations and to consent to settlement. If the Issuer or such Indemnified Person is advised in a written opinion of counsel that is also addressed to the Company that there may be legal defenses available to the Issuer or such Indemnified Person which are adverse to or in conflict with those available to the Company, or that the defenses of the Issuer or such Indemnified Person should be handled by separate counsel, the Company shall not have the right to assume or cause the assumption of the defense of the Issuer or such Indemnified Person, however, the Company shall be responsible for the reasonable fees and expenses of counsel retained by the Issuer or such Indemnified Person in assuming its own defense, provided such counsel is approved in writing by the Company. If the Company shall have failed to assume or cause the assumption of the defense of such suit, action or proceeding or to retain counsel reasonably satisfactory to the Issuer or any Indemnified Person, the reasonable fees and expenses of counsel retained by the Issuer or such Indemnified Person shall be paid by the Company. Notwithstanding, and in addition to, any of the foregoing, the Issuer or any Indemnified Person shall have the right to employ separate counsel with respect to any such claim or in any such suit, action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Issuer or the Indemnified Person unless the employment of such counsel has been specifically authorized in writing by the Company. The Company shall not be liable for any settlement of any such suit, action or proceeding effected without the written consent of the Company, but if settled with the written consent of the Company or if there is a final judgment for the plaintiff in any such suit, action or proceeding with or without consent, and after all appeals have been taken and final orders or dismissals entered, the Company agrees to indemnify and hold harmless the Issuer or such Indemnified Person from and against any loss or liability by reason of such settlement or judgment. B. As an inducement to the Depositary to enter into the Indenture, the Company also agrees to pay and to indemnify and hold harmless the Depositary, any person who “controls” the Depositary within the meaning of Section 15 of the Securities Act of 1933, as amended, and any member, officer, agent, director, official and employee of the Depositary (collectively called the “Indemnified Parties”) from and against any and all claims, fines, penalties, damages, demands, expenses, (including out-of-pocket and incidental expenses and legal fees, including the allocated costs and expenses of in-house counsel and legal staff) liabilities and losses of every kind, character and nature (“Losses”) asserted by or on behalf of any person in connection with (i) the issuance, offering, sale, delivery, or remarketing of the Bonds, the Indenture and this Lease and the obligations imposed on the Depositary hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Parties, with respect to the Company, the Leased Property, or the Bonds, including, but not limited to, statements or representations of facts, financial information, or corporate affairs; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; (iv) any loss or damage incurred by the Depositary as a result of violation by the Company of the provisions of Section 3.2, or arising out of, resulting from, or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, equipping and renovation or sale of the Leased Property or any part thereof; and
Appears in 1 contract
Samples: Lease Agreement
Indemnity; Expenses. A. (a) To the fullest extent not caused or occasioned permitted by the gross negligence or willful misconduct of the Indemnified Persons or any Indemnified Person (as such terms are defined below)law, the Company shall will indemnify and hold the Issuer and its governing body, officers, agents, attorneys, and employees (hereinafteremployees, the Governing Body, the Depositary, any person who “Indemnified Personscontrols” or the Depositary within the meaning of Section 15 of the Securities Act of 1933, as amended, and any member, officer, agent, director, official and employee of the Depositary (each an “Indemnified PersonIndemnitee”) harmless from and against any and all claims, damages, demands, expensesexpenses (including all costs, reasonable attorney fees, expenses and costs incurred in any suit, action or proceeding), liabilities and losses of every kind, character and nature asserted by or on behalf of any person Person in connection with
with (i) the issuance, offering, sale, delivery, or remarketing of the Bonds, the Indenture and this Lease and the obligations imposed on the Issuer hereby and thereby; or the acquisition, construction, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Persons or an Indemnified Person with respect to the Company, the Leased Property, or the Bonds, including, but not limited to, statements or representations of facts, financial information, or corporate affairs or any breach or default on the part of the Company in the performance of any representation, covenant or agreement of the Company under this Lease, or any related document, or arising from any acts or failure to act by the Company, or any of its agents, contractors, servants, employees or licensees; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; and (iv) any loss or damage incurred by the Issuer as a result of violation by the Company of the provisions of Section 3.2Issuer, or arising out of, resulting from, or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, construction, equipping and renovation or sale of the Leased Property or any part thereof. The thereof or the failure of the Company also covenants and agrees, at to perform its expense, to pay, and to indemnify the Indemnified Persons from and against, all costs, reasonable attorney fees, expenses and liabilities incurred in any suit, action or proceeding brought by reason of any such claim. obligations under this Lease.
(b) If any such suit, action or proceeding is brought against the Issuer or any Indemnified PersonIndemnitee for which indemnity may be sought under this Section 5.07, the Issuer or such Indemnified Person shallIndemnitee will, within ten (10) days of being notified of such suit, action or proceeding against it, notify give notice thereof to the Company, in writing, and the .
(c) The Company shall promptly may assume or cause the assumption of the defense thereofof any such suit, action or proceeding, including (a) the employment of counsel chosen by the Company and approved in writing by the Issuer or such Indemnified Person Indemnitee (provided that such approval by the Issuer or such Indemnified Person shall Indemnitee will not be unreasonably withheld, conditioned or delayed), (b) the payment of all reasonable expenses of such counsel and (c) the right of the Issuer or such Indemnified Person Indemnitee to participate in negotiations and to consent to settlement, which consent will not be unreasonably withheld, conditioned or delayed. If the Issuer or such Indemnified Person Indemnitee is advised in a written opinion of counsel that is also addressed to the Company that there may be legal defenses available to the Issuer or such Indemnified Person which Indemnitee that are adverse to or in conflict with those available to the Company, or that the defenses of the Issuer or such Indemnified Person Indemnitee should be handled by separate counsel, the Company shall will not have the right to assume or cause the assumption of the defense of the Issuer or such Indemnified Person, however, Indemnitee but the Company shall will be responsible for the reasonable fees and expenses of counsel retained by the Issuer or such Indemnified Person in assuming its own defense, provided Indemnitee so long as such counsel is approved in writing by reasonably acceptable to the Company. .
(d) If the Company shall have failed fails to assume or cause the assumption of the defense of such suit, action or proceeding or to retain counsel reasonably satisfactory to the Issuer or any Indemnified PersonIndemnitee, the reasonable fees and expenses of counsel retained by the Issuer or such Indemnified Person shall will be paid by the Company. .
(e) Notwithstanding, and in addition to, any of the foregoing, the Issuer or any Indemnified Person shall Indemnitee will have the right to employ separate counsel with respect to any such claim or in any such suit, action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall will be paid by the Issuer or the Indemnified Person Indemnitee unless the employment of such counsel has been specifically authorized in writing by the Company. .
(f) The Company shall will not be liable for any settlement of any such suit, action or proceeding effected without the written consent of the Company, but if settled with the written consent .
(g) The obligations of the Company under this Section 5.07 will survive any assignment or if there is a final judgment for the plaintiff in any such suit, action or proceeding with or without consent, and after all appeals have been taken and final orders or dismissals enteredtermination of this Lease, the Company agrees to indemnify and hold harmless the Issuer or such Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
B. As an inducement to the Depositary to enter into the Indenture, the Company also agrees to pay and to indemnify and hold harmless the Depositary, any person who “controls” the Depositary within the meaning of Section 15 discharge of the Securities Act of 1933, as amended, and any member, officer, agent, director, official and employee Indenture or the resignation or removal of the Depositary or the termination of its duties.
(collectively called h) To the “Indemnified Parties”) from and against extent, if at all, that any and all claimsprovision requiring one party to indemnify, fineshold harmless, penalties, damages, demands, expenses, insure or defend another party (including out-of-pocket and incidental expenses and legal fees, including such other party’s employees or agents) contained herein or in any related documents is found to be within the allocated costs and expenses of in-house counsel and legal staff) liabilities and losses of every kind, character and nature (“Losses”) asserted by or on behalf of any person in connection with (i) the issuance, offering, sale, delivery, or remarketing of the Bonds, the Indenture and this Lease and the obligations imposed on the Depositary hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Parties, with respect to the Company, the Leased Property, or the Bonds, including, but not limited to, statements or representations of facts, financial information, or corporate affairs; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; (iv) any loss or damage incurred by the Depositary as a result of violation by the Company of the provisions scope of Section 3.256-7-1 NMSA 1978, or arising out of, resulting fromas amended from time to time, or in any way connected subject to, or conditioned upon consistency with, the conditionprovisions of Section 56-7-1 NMSA 1978, useas amended from time to time, possessionfor its enforceability, conductthen such provision, managementregardless of whether it makes reference to this or any other limitation provision, planningwill not extend to liability, designclaims, acquisitiondamages, equipping and renovation losses or sale expenses, including attorney fees, arising out of bodily injury to persons or damage to property caused by or resulting from, in whole or in part, the negligence, act or omission of the Leased Property indemnitee or any part thereof; andadditional insured, as the case may be, its officers, employees or agents, and will be further modified, if required by the provisions of Section 56-7-1(B) NMSA 1978, as amended from time to time.
Appears in 1 contract
Samples: Lease Agreement
Indemnity; Expenses. A. To the extent not caused or occasioned by the gross negligence or willful misconduct of the Indemnified Persons or any Indemnified Person (as such terms are defined below), the Company shall indemnify and hold the Issuer and its governing body, officers, agents, and employees (hereinafter, the “Indemnified Persons” or “Indemnified Person”) harmless from and against any and all claims, damages, demands, expenses, liabilities and losses of every kind, character and nature asserted by or on behalf of any person in connection with
with (i) the issuance, offering, sale, delivery, or remarketing of the BondsBond, the Indenture and this Lease and the obligations imposed on the Issuer hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Persons or an Indemnified Person with respect to the Company, the Leased Property, or the BondsBond, including, but not limited to, statements or representations of facts, financial information, or corporate affairs or any breach or default on the part of the Company in the performance of any representation, covenant or agreement of the Company under this Lease, or any related document, or arising from any acts or failure to act by the Company, or any of its agents, contractors, servants, employees or licensees; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; and (iv) any loss or damage incurred by the Issuer as a result of violation by the Company of the provisions of Section 3.2, or arising out of, resulting from, or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, construction, equipping and renovation or sale of the Leased Property or any part thereof. The Company also covenants and agrees, at its expense, to pay, and to indemnify the Indemnified Persons from and against, all costs, reasonable attorney fees, expenses and liabilities costs incurred in any suit, action or proceeding brought by reason of any such claim. If any such suit, action or proceeding is brought against the Issuer or any other Indemnified Person, the Issuer or such Indemnified Person shall, within ten (10) days of being notified of such suit, action or proceeding against it, notify the Company, in writing, and the Company shall promptly assume or cause the assumption of the defense thereof, including the employment of counsel chosen by the Company and approved in writing by the Issuer or such Indemnified Person (provided that such approval by the Issuer or such Indemnified Person shall not be unreasonably withheld, conditioned or delayed), the payment of all reasonable expenses of such counsel and the right of the Issuer or such Indemnified Person to participate in negotiations and to consent to settlement, which consent shall not be unreasonably withheld, conditioned or delayed. If the Issuer or such Indemnified Person is advised in a written opinion of counsel that is also addressed to the Company that there may be legal defenses available to the Issuer or such Indemnified Person which are adverse to or in conflict with those available to the Company, or that the defenses of the Issuer or such Indemnified Person should be handled by separate counsel, the Company shall not have the right to assume or cause the assumption of the defense of the Issuer or such Indemnified Person, however, the Company shall be responsible for the reasonable fees and expenses of counsel retained by the Issuer or such Indemnified Person in assuming its own defense, provided such counsel is approved in writing by the Company. If the Company shall have failed to assume or cause the assumption of the defense of such suit, action or proceeding or to retain counsel reasonably satisfactory to the Issuer or any Indemnified Person, the reasonable fees and expenses of counsel retained by the Issuer or such Indemnified Person shall be paid by the Company. Notwithstanding, and in addition to, any of the foregoing, the Issuer or any Indemnified Person shall have the right to employ separate counsel with respect to any such claim or in any such suit, action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Issuer or the Indemnified Person unless the employment of such counsel has been specifically authorized in writing by the Company. The Company shall not be liable for any settlement of any such suit, action or proceeding effected without the written consent of the Company, but if settled with the written consent of the Company or if there is a final judgment for the plaintiff in any such suit, action or proceeding with or without consent, and after all appeals have been taken and final orders or dismissals entered, the Company agrees to indemnify and hold harmless the Issuer or such Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
B. judgment other than a judgment merely confirming a settlement entered into without the written consent of the Company. As an inducement to the Depositary to enter into the Indenture, the Company also agrees to pay and to indemnify and hold harmless the Depositary, any person who “controls” the Depositary within the meaning of Section 15 of the Securities Act of 1933, as amended, and any member, officer, agent, director, official and employee of the Depositary (collectively called the “Indemnified Parties”) from and against any and all claims, fines, penalties, damages, demands, expenses, (including out-of-pocket and incidental expenses and legal fees, including the allocated costs and expenses of in-house counsel and legal staff) liabilities and losses of every kind, character and nature (“Losses”) asserted by or on behalf of any person in connection with with
(i) the issuance, offering, sale, delivery, or remarketing of the BondsBond, the Indenture and this Lease and the obligations imposed on the Depositary hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Parties, with respect to the Company, the Leased Property, or the BondsBond, including, but not limited to, statements or representations of facts, financial information, or corporate affairs; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; (iv) any loss or damage incurred by the Depositary as a result of violation by the Company of the provisions of Section 3.2, or arising out of, resulting from, or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, equipping and renovation or sale of the Leased Property or any part thereof; andand (v) the execution of and performance of its duties under the Indenture, to the extent not caused or occasioned by the gross negligence or willful misconduct of an Indemnified Party. The Company also covenants and agrees, at its expense, to pay, and to indemnify the Indemnified Parties from and against, all costs, reasonable attorney fees, expenses and liabilities incurred in any action or proceeding brought by reason of any such claim, to the extent not caused or occasioned by the gross negligence or willful misconduct of such Indemnified Party. In addition to and not in limitation of the immediately preceding sentences, the Company agrees to indemnify and hold the Indemnified Parties harmless from and against any and all Losses that may be imposed on, incurred by, or asserted against, the Indemnified Parties for following any instructions or other directions upon which the Depositary is authorized to rely pursuant to the terms of the Indenture or this Lease. If any such suit, action or proceeding is brought against the Depositary or any other Indemnified Party, the Depositary or such Indemnified Party shall, within ten (10) days of being notified of such suit, action or proceeding against it, notify the Company, in writing, and the Company shall promptly assume or cause the assumption of the defense thereof, including the employment of counsel chosen by the Company and approved in writing by the Depositary or such Indemnified Party (provided that such approval by the Depositary or such Indemnified Party shall not be unreasonably withheld, conditioned or delayed), the payment of all reasonable expenses of such counsel and the right of the Depositary or such Indemnified Party to participate in negotiations and to consent to settlement, which consent shall not be unreasonably withheld, conditioned or delayed. If the Depositary or such Indemnified Party is advised in a written opinion of counsel that is also addressed to the Company that there may be legal defenses available to the Depositary or such Indemnified Party which are adverse to or in conflict with those available to the Company, or that the defenses of the Depositary or such Indemnified Party should be handled by separate counsel, the Company shall not have the right to assume or cause the assumption of the defense of the Depositary or such Indemnified Party, however, the Company shall be responsible for the reasonable fees and expenses of counsel retained by the Depositary or such Indemnified Party in assuming its own defense, provided such counsel is approved in writing by the Company. If the Company shall have failed to assume or cause the assumption of the defense of such suit, action or proceeding or to retain counsel reasonably satisfactory to the Depositary or any Indemnified Party, the reasonable fees and expenses of counsel retained by the Depositary or such Indemnified Party shall be paid by the Company. Notwithstanding, and in addition to, any of the foregoing, the Depositary or any Indemnified Party shall have the right to employ separate counsel with respect to any such claim or in any such suit, action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Depositary or the Indemnified Party unless the employment of such counsel has been specifically authorized in writing by the Company. The Company shall not be liable for any settlement of any such action effected without its consent; but if settled with the consent of the Company or if there be a final, unappealable judgment for the plaintiff in any such action, the Company agrees to indemnify and hold harmless the Indemnified Parties other than a judgment merely confirming a settlement entered into without the written consent of the Company.
B. The obligations of the Company under this Section 5.7 shall survive any assignment or termination of this Lease, the discharge of the Indenture or the resignation or removal of the Depositary or the termination of its duties.
C. To the extent, if at all, that any provision requiring one party to indemnify, hold harmless, insure or defend another party (including such other party’s employees or agents) contained herein or in any related documents is found to be within the scope of Section 56-7-1 XXXX 0000, as amended from time to time, or in any way subject to, or conditioned upon consistency with, the provisions of Section 56-7-1 XXXX 0000, as amended from time to time, for its enforceability, then such provision, regardless of whether it makes reference to this or any other limitation provision, shall not extend to liability, claims, damages, losses or expenses, including attorney fees, arising out of bodily injury to persons or damage to property caused by or resulting from, in whole or in part, the negligence, act or omission of the indemnitee or additional insured, as the case may be, its officers, employees or agents, and shall be further modified, if required by the provisions of Section 56-7-1(B) XXXX 0000, as amended from time to time. Further, notwithstanding any other term or condition of this Lease, to the extent, if at all, that any agreement, covenant or promise to indemnify another party (including such party’s employees or agents) contained herein or in any related documents, is found to be within the scope of Section 56-7-2 XXXX 0000, as amended from time to time, or in any way subject to, or conditioned upon consistency with, the provisions of Section 56-7-2 XXXX 0000, as amended from time to time, for its enforceability, then regardless of whether it makes reference to this or any other limitation provision, such agreement is not intended to, and it does not, indemnify such indemnitee against loss or liability for damages arising from:
(i) the sole or concurrent negligence of such indemnitee or the agents or employees of such indemnitee;
(ii) the sole or concurrent negligence of an independent contractor who is directly responsible to such indemnitee; or
(iii) an accident that occurs in operations carried on at the direction or under the supervision of such indemnitee, an employee or representative of such indemnitee, or in accordance with methods and means specified by such indemnitee or the employees or representatives of such indemnitee.
Appears in 1 contract
Samples: Lease Agreement
Indemnity; Expenses. A. To Each Grantor jointly and severally agrees to indemnify, reimburse and hold the Administrative Agent and each other Secured Creditor and their respective successors, assigns, employees, officers, directors, affiliates, agents and servants (hereinafter in this Section referred to individually as an "Indemnitee," and, collectively, as "Indemnitees") harmless from any and all liabilities, obligations, losses, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, expenses or disbursements (including attorneys' fees and expenses) of whatsoever kind and nature imposed on, asserted against or incurred by any of the Indemnitees in any way relating to or arising out of this Agreement, any other Loan Document or any other document executed in connection herewith or therewith or in any other way connected with the administration of the transactions contemplated hereby or thereby or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to or arising out of the manufacture, ownership, ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of the Collateral (including, without limitation, latent or other defects, whether or not discoverable), including the violation by any Grantor of the laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitee), or property damage), or contract claim; provided, that such indemnity shall not, as to any Indemnitee, be available to the extent not caused that such liabilities, obligations, losses, damages, injuries, penalties, claims, demands, actions, suits, judgments or occasioned related costs, expenses or disbursements (i) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (ii) result from a claim brought by any Grantor against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder, if such Grantor has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Each Grantor agrees that upon written notice by any Indemnitee of the Indemnified Persons assertion of such a liability, obligation, loss, damage, injury, penalty, claim, demand, action, suit or judgment, such Grantor shall assume full responsibility for the defense thereof, subject to the terms of this Section 13. Each Indemnitee agrees to promptly notify such Grantor of any Indemnified Person such assertion of which such Indemnitee has knowledge. Without limiting the application, and subject to the terms, of subsection (as such terms are defined below)a) above, each Grantor agrees, jointly and severally, to pay or reimburse the Company shall Administrative Agent upon demand for any and all fees, costs and expenses of whatever kind or nature incurred in connection with the creation, preservation or protection of the Security Interests in the Collateral, including, without limitation, all fees and taxes in connection with the recording or filing of instruments and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to the Collateral and all other fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral and the Administrative Agent's interest therein, whether through judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral. Without limiting the application of subsections (a) or (b) of this Section 13, each Grantor agrees, jointly and severally, to pay, indemnify and hold the Issuer and its governing body, officers, agents, and employees (hereinafter, the “Indemnified Persons” or “Indemnified Person”) each Indemnitee harmless from and against any loss, costs, damages and all claimsexpenses that such Indemnitee may suffer, damages, demands, expenses, liabilities and losses expend or incur in consequence of every kind, character and nature asserted by or on behalf growing out of any person in connection with
(i) the issuance, offering, sale, delivery, or remarketing of the Bonds, the Indenture and this Lease and the obligations imposed on the Issuer hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Persons or an Indemnified Person with respect to the Company, the Leased Property, or the Bonds, including, but not limited to, statements or representations of facts, financial information, or corporate affairs or any breach or default on the part of the Company in the performance of any representation, covenant or agreement of the Company under this Lease, or any related document, or arising from any acts or failure to act by the Company, or any of its agents, contractors, servants, employees or licensees; (iii) damage to property or any injury to or death of any Person that may be occasioned misrepresentation by any cause whatsoever pertaining to the Leased Property; and (iv) Grantor in this Agreement, any loss or damage incurred by the Issuer as a result of violation by the Company of the provisions of Section 3.2, or arising out of, resulting from, other Loan Document or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, construction, equipping and renovation writing contemplated by or sale of the Leased Property made or any part thereof. The Company also covenants and agrees, at its expense, to pay, and to indemnify the Indemnified Persons from and against, all costs, reasonable attorney fees, expenses and liabilities incurred in any suit, action or proceeding brought by reason of any such claim. If any such suit, action or proceeding is brought against the Issuer or any Indemnified Person, the Issuer or such Indemnified Person shall, within ten (10) days of being notified of such suit, action or proceeding against it, notify the Company, in writing, and the Company shall promptly assume or cause the assumption of the defense thereof, including the employment of counsel chosen by the Company and approved in writing by the Issuer or such Indemnified Person (provided that such approval by the Issuer or such Indemnified Person shall not be unreasonably withheld), the payment of all reasonable expenses of such counsel and the right of the Issuer or such Indemnified Person to participate in negotiations and to consent to settlement. If the Issuer or such Indemnified Person is advised in a written opinion of counsel that is also addressed to the Company that there may be legal defenses available to the Issuer or such Indemnified Person which are adverse delivered pursuant to or in conflict connection with those available this Agreement or any other Loan Document. If and to the Company, or extent that the defenses obligations of any Grantor under this Section are unenforceable for any reason, such Grantor hereby agrees to make the Issuer or such Indemnified Person should be handled by separate counsel, maximum contribution to the Company shall not have the right to assume or cause the assumption of the defense of the Issuer or such Indemnified Person, however, the Company shall be responsible for the reasonable fees payment and expenses of counsel retained by the Issuer or such Indemnified Person in assuming its own defense, provided such counsel is approved in writing by the Company. If the Company shall have failed to assume or cause the assumption of the defense satisfaction of such suit, action or proceeding or to retain counsel reasonably satisfactory to obligations that is permissible under Requirement of Law. This Section 13 shall survive the Issuer or any Indemnified Person, the reasonable fees and expenses termination of counsel retained by the Issuer or such Indemnified Person shall be paid by the Company. Notwithstanding, and in addition to, any of the foregoing, the Issuer or any Indemnified Person shall have the right to employ separate counsel with respect to any such claim or in any such suit, action or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by the Issuer or the Indemnified Person unless the employment of such counsel has been specifically authorized in writing by the Company. The Company shall not be liable for any settlement of any such suit, action or proceeding effected without the written consent of the Company, but if settled with the written consent of the Company or if there is a final judgment for the plaintiff in any such suit, action or proceeding with or without consent, and after all appeals have been taken and final orders or dismissals entered, the Company agrees to indemnify and hold harmless the Issuer or such Indemnified Person from and against any loss or liability by reason of such settlement or judgmentthis Agreement.
B. As an inducement to the Depositary to enter into the Indenture, the Company also agrees to pay and to indemnify and hold harmless the Depositary, any person who “controls” the Depositary within the meaning of Section 15 of the Securities Act of 1933, as amended, and any member, officer, agent, director, official and employee of the Depositary (collectively called the “Indemnified Parties”) from and against any and all claims, fines, penalties, damages, demands, expenses, (including out-of-pocket and incidental expenses and legal fees, including the allocated costs and expenses of in-house counsel and legal staff) liabilities and losses of every kind, character and nature (“Losses”) asserted by or on behalf of any person in connection with (i) the issuance, offering, sale, delivery, or remarketing of the Bonds, the Indenture and this Lease and the obligations imposed on the Depositary hereby and thereby; or the acquisition, equipping, operation, use, occupancy, maintenance, or ownership of the Leased Property; (ii) any written statements or representations made or given by the Company or any of its officers or employees to the Indemnified Parties, with respect to the Company, the Leased Property, or the Bonds, including, but not limited to, statements or representations of facts, financial information, or corporate affairs; (iii) damage to property or any injury to or death of any Person that may be occasioned by any cause whatsoever pertaining to the Leased Property; (iv) any loss or damage incurred by the Depositary as a result of violation by the Company of the provisions of Section 3.2, or arising out of, resulting from, or in any way connected with, the condition, use, possession, conduct, management, planning, design, acquisition, equipping and renovation or sale of the Leased Property or any part thereof; and
Appears in 1 contract
Samples: Guaranty and Security Agreement (Steiner Leisure LTD)
