Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises. B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or Remediation on, at or affecting the Premises.
Appears in 6 contracts
Samples: Loan Agreement (Summit Hotel OP, LP), Loan Agreement (Summit Hotel OP, LP), Loan Agreement (Summit Hotel OP, LP)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) Losses (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in any of the Premises or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any of the Premises of any Hazardous Materials at any time located in, under, on or above any of the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above any of the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with any of the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; ;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials Material which causes the incurrence of costs for Remediation; ;
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or or
(1312) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to Borrower's breach of any representation, covenant, or obligation set forth in this Agreement and with respect to any Hazardous Materials, Releases or and/or Remediation on, at or affecting any of the Premises.
Appears in 3 contracts
Samples: Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, reasonable attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”") (excluding Losses suffered by an Indemnified Party SCS Finance II, L.P. Mortgage Loan directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in any of the Premises or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Environmental Compliance Activities and Remediation (whether or not performed voluntarily), engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of any Hazardous Materials or USTs in, on, above, or under the Premises introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any of the Premises of any Hazardous Materials or USTs at any time located in, under, on or above any of the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials or USTs at any time located in, under, on or above any of the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with any of the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials or USTs owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; Materials or USTs;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, in accepting any Hazardous Materials or USTs for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Environmental Compliance Activities or Remediation; SCS Finance II, L.P. Mortgage Loan
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or or
(1312) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed Except as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documentsmay be expressly provided otherwise herein, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, USTs, Releases or and/or Remediation on, at or affecting any of the PremisesPremises except for claims and actions against Lender that arise as a result of Lender's gross negligence or willful misconduct.
C. If an Indemnified Party desires to be indemnified by Borrower with respect to any Loss pursuant to this Section 10, that Indemnified Party shall notify Borrower promptly upon receiving notice of or otherwise learning of the Loss for which indemnification will be sought. The failure or delay of an Indemnified Party to provide notice required by the foregoing sentence shall not release Borrower from its obligations under this Section 10; provided, however, that if an Indemnified Party fails to provide or delays providing such notice to Borrower and such failure or delay shall prejudice in a material adverse manner the ability of Borrower to defend against the claim, cause of action or other proceeding that may result in the Losses for which the Indemnified Party is seeking indemnity, Borrower shall not have any obligation to indemnify the Indemnified Party for such Losses to the extent the delay causes Borrower to be unable to effectively provide a defense of such claims relating to the Losses. If an Indemnified Party notifies Borrower of any claim of proceeding included in, or any investigation or allegation concerning Losses for which Borrower is responsible pursuant to this Section 10, Borrower shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Borrower and approved by the Indemnified Party, in its sole discretion. However, if any such claim, proceeding investigation or allegation involves both Borrower and the Indemnified Party and the Indemnified Party shall have reasonably concluded that there are legal defenses available to it which are inconsistent with those available to Borrower and that as a result the counsel selected to prosecute such defense would have an ethical conflict of interest in its representation of the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, proceeding, investigation or allegation on its own behalf, and Borrower shall pay or reimburse the Indemnified Party for all attorney's fees incurred by the Indemnified Party because of the selection of such separate counsel. If Borrower fails to assume the defense of the Indemnified Party promptly following notification from the Indemnified Party (and in any event fifteen days after Borrower is notified of the applicable claim, proceeding, investigation or allegation), or at any time an Indemnified Party determines in its reasonable discretion that immediate action is necessary to preserve the rights of the Indemnified Party, then the Indemnified Party may take actions as reasonably necessary to contest or defend the claim, proceeding, investigation or allegation at Borrower's expense using counsel selected by the Indemnified Party; provided, that if the Indemnified Party takes such immediate action, Borrower may thereafter assume control of any remaining aspects of the defense of such claim, cause of action or proceeding, investigation or allegation as otherwise provided herein. Moreover, if such failure by Borrower continues for thirty days or more after Borrower is notified of any such claim, proceeding, investigation or allegation then the Indemnified Party may elect not to contest or continue contesting such claim, proceeding, investigation or allegation and instead, in accordance with the advice of counsel, settle (or pay in full) any or all claims against the Indemnified Party related thereto without Borrower's consent and without releasing Borrower from any obligations to the Indemnified Party under this Section 10. Except as expressly set forth in the preceding sentence, no Indemnified Party or Borrower shall settle, compromise, permit a default judgment to be entered or agree to the entry of a judgment in or in connection with any claim, cause of action, proceeding, investigation or allegation which could result in Losses without the prior written consent of Borrower and Indemnified Party.
Appears in 1 contract
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower Debtor shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s Lender's interest in the Premises Property or Borrower’s Lender's failure to act in respect of matters which are or were the obligation of Borrower Debtor under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11a) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the PremisesProperty; (12b) any disclosures of information, financial or otherwise, (xi) made by (i) Lender or Lender’s 's employees, officers, members, managers, agents and designees to Franchisor or any third party as contemplated by Section 11.R 13 of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to BorrowerDebtor, any guarantor of the LoanLoan (including each Guarantor), any Affiliate of BorrowerDebtor, any of the other Borrower Debtor Parties or any operator or lessee of the PremisesProperty; or (13c) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower Debtor fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or Remediation on, at or affecting the PremisesProperty. In addition to the foregoing, Debtor hereby fully incorporates each and every indemnity and release made by Debtor to Lender in the Environmental Indemnification Agreement as if fully set forth herein.
Appears in 1 contract
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, reasonable attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”") (excluding Losses suffered by an Indemnified Party SCS Finance I, L.P. Mortgage Loan directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in any of the Premises or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Environmental Compliance Activities and Remediation (whether or not performed voluntarily), engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of any Hazardous Materials or USTs in, on, above, or under the Premises introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any of the Premises of any Hazardous Materials or USTs at any time located in, under, on or above any of the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials or USTs at any time located in, under, on or above any of the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with any of the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials or USTs owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; Materials or USTs;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, in accepting any Hazardous Materials or USTs for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Environmental Compliance Activities or Remediation; SCS Finance I, L.P. Mortgage Loan
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or or
(1312) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed Except as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documentsmay be expressly provided otherwise herein, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, USTs, Releases or and/or Remediation on, at or affecting any of the PremisesPremises except for claims and actions against Lender that arise as a result of Lender's gross negligence or willful misconduct.
C. If an Indemnified Party desires to be indemnified by Borrower with respect to any Loss pursuant to this Section 10, that Indemnified Party shall notify Borrower promptly upon receiving notice of or otherwise learning of the Loss for which indemnification will be sought. The failure or delay of an Indemnified Party to provide notice required by the foregoing sentence shall not release Borrower from its obligations under this Section 10; provided, however, that if an Indemnified Party fails to provide or delays providing such notice to Borrower and such failure or delay shall prejudice in a material adverse manner the ability of Borrower to defend against the claim, cause of action or other proceeding that may result in the Losses for which the Indemnified Party is seeking indemnity, Borrower shall not have any obligation to indemnify the Indemnified Party for such Losses to the extent the delay causes Borrower to be unable to effectively provide a defense of such claims relating to the Losses. If an Indemnified Party notifies Borrower of any claim of proceeding included in, or any investigation or allegation concerning Losses for which Borrower is responsible pursuant to this Section 10, Borrower shall assume on behalf of the Indemnified Party and conduct with due diligence and in good faith the investigation and defense thereof and the response thereto with counsel selected by Borrower and approved by the Indemnified Party, in its sole discretion. However, if any such claim, proceeding investigation or allegation involves both Borrower and the Indemnified Party and the Indemnified Party shall have reasonably concluded that there are legal defenses available to it which are inconsistent with those available to Borrower and that as a result the counsel selected to prosecute such defense would have an ethical conflict of interest in its representation of the Indemnified Party, then the Indemnified Party shall have the right to select separate counsel to participate in the investigation and defense of and response to such claim, proceeding, investigation or allegation on its own behalf, and Borrower shall pay or reimburse the Indemnified Party for all attorney's fees incurred by the Indemnified Party because of the selection of such separate counsel. If Borrower fails to assume the defense of the Indemnified Party promptly following notification from the Indemnified Party (and in any event fifteen days after Borrower is notified of the applicable claim, proceeding, investigation or allegation), or at any time an Indemnified Party determines in its reasonable discretion that immediate action is necessary to preserve the rights of the Indemnified Party, then the Indemnified Party may take actions as reasonably necessary to contest or defend the claim, proceeding, investigation or allegation at Borrower's expense using counsel selected by the Indemnified Party; provided, that if the Indemnified Party takes such immediate action, Borrower may thereafter assume control of any remaining aspects of the defense of such claim, cause of action or proceeding, investigation or allegation as otherwise provided herein. Moreover, if such failure by Borrower continues for thirty days or more after Borrower is notified of any such claim, proceeding, investigation or allegation then the Indemnified Party may elect not to contest or continue contesting such claim, proceeding, investigation or allegation and instead, in accordance with the advice of counsel, settle (or pay in full) any or all claims against the Indemnified Party related thereto without Borrower's consent and without releasing Borrower from any obligations to the Indemnified Party under this Section 10. Except as expressly set forth in the preceding sentence, no Indemnified Party or Borrower shall settle, compromise, permit a default judgment to be entered or agree to the entry of a judgment in or in connection with any claim, cause of action, proceeding, investigation or allegation which could result in Losses without the prior written consent of Borrower and Indemnified Party.
Appears in 1 contract
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Xxxxxxxx Xx. 00000 GE No. 8004-0863 0000 Xxxxxx Xxxx Albany, Georgia Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; or (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or and/or Remediation on, at or affecting the Premises.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in the Premises or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; ;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; ;
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; ;
(12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding ; or
(13) any failure by Borrower to comply with any of the aboveterms and conditions of the Permitted Lease, Borrower shall not be liable for including, without limitation, any costs and expenses incurred by any of the acts of tenants or other users occurring after the Borrower no longer owns the PremisesIndemnified Parties to cure any such failure.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or and/or Remediation on, at or affecting the Premises.
Appears in 1 contract
Samples: Loan Agreement (Kona Grill Inc)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified PartyPar ty, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or Remediation on, at or affecting the Premises.
Appears in 1 contract
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (7) any administrative processes or proceedings or judicial proceedings in Xxxxxxxx Xx. 00000 GE No. 8004-3736 Dunn, North Carolina any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; or (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or and/or Remediation on, at or affecting the Premises.
Appears in 1 contract
Samples: Deed of Trust (Jameson Inns Inc)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”") (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in any of the Premises or Equipment or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily)Remediation, engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of contamination by any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from any of the Premises of any Hazardous Materials at any time located in, under, on or above any of the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above any of the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with any of the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership any of the Premises by Borroweror the Equipment, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; ;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of any of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; ;
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties Premises or any operator or lessee of the Premises; or Equipment;
(1312) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding ; or
(13) any failure by Borrower to comply with any of the aboveterms and conditions of the Ground Leases, Borrower shall not be liable for Space Leases or the acts Franchise Agreements, including, without limitation, any costs and expenses incurred by any of tenants or other users occurring after the Borrower no longer owns the PremisesIndemnified Parties to cure any such failure.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or and/or Remediation on, at or affecting any of the Premises.
Appears in 1 contract
Samples: Loan Agreement (Romacorp Inc)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, 19 obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in the Premises or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of any Hazardous Materials or USTs in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials or USTs at any time located in, under, on or above the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials or USTs at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials or USTs owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; Materials or USTs;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials or USTs for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; 20
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; or
(12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, USTs, Releases or and/or Remediation on, at or affecting the Premises.
Appears in 1 contract
Samples: Loan Agreement (Family Steak Houses of Florida Inc)
Indemnity; Release. A. Initially capitalized terms in this Section that are (a) In addition to the payment of expenses pursuant to subsection 9.2, whether or not otherwise defined in this Agreement the transactions contemplated hereby shall have the meanings set forth in the Environmental Indemnity Agreement. be consummated, Borrower shall, at its sole cost and expense, protect, agrees to defend, indemnify, release pay and hold harmless each Lender, and the officers, directors, employees, agents and affiliates of Lender (collectively called the Indemnified Parties for, "INDEMNITEES") from and against any and all claimsother liabilities, obligations, losses, damages, penalties, actions, judgments, suits, liabilities claims, costs, expenses and disbursements of any kind or nature whatsoever (including without limitation the reasonable fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial action or proceeding commenced or threatened by any Person (including but not limited to any Loan Party, any Indemnitee and any third party), whether or not any such Indemnitee shall be designated as a party or a potential party thereto, it being understood that such fees and disbursements include those incurred to enforce the provisions of this Agreement), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including without limitation securities and commercial laws, statutes, rules or regulations and Environmental Laws), on any Environmental Claim, on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee at any time (including, without limitation, strict liabilitiesat any time following the payment of the Obligations), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind any manner relating to or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of this Agreement or the other Loan Documents or 105 the transactions contemplated hereby or thereby (including without limitation Lender's agreement to make the Loans hereunder or the use or intended use of the proceeds of any of the Loans) or the statements contained in the commitment letter delivered by Lender to Borrower with respect thereto (collectively called the "INDEMNIFIED LIABILITIES"); PROVIDED that Borrower shall not have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Party’s Liabilities arise solely from the gross negligence or willful misconduct; provided, however, misconduct of that Indemnitee as determined by a final judgment of a court of competent jurisdiction. To the extent that the term “gross negligence” shall not include gross negligence imputed as a matter of law undertaking to any of the Indemnified Parties solely by reason of Borrower’s interest defend, indemnify, pay and hold harmless set forth in the Premises preceding sentence or Borrower’s failure to act as set forth in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gassubsection 9.3(c) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence below may be unenforceable because it is violative of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the abovepolicy, Borrower shall not be liable for contribute the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, maximum portion that the term “gross negligence” shall not include gross negligence imputed as a matter of it is permitted to pay and satisfy under applicable law to Lender solely the payment and satisfaction of all Indemnified Liabilities incurred by reason the Indemnitees or any of Borrower’s interest them. All amounts due under this Section 9.3 shall be payable promptly after written demand therefor. The agreements in this Section 9.3 shall survive repayment of the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully Revolving Loans and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or all other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or Remediation on, at or affecting the Premisesamounts payable hereunder.
Appears in 1 contract
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened Xxxxxxxx Xx. 00000 GE No. 8004-2212 0000 Xxxxxx Xxxxx Wilmington, North Carolina injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; or (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or and/or Remediation on, at or affecting the Premises.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ fees, court costs and other costs of defense) (collectively, “Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ fees, environmental consultants’ fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: (1) any presence of any Hazardous Materials in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials at any time located in, under, on or above the Premises; (4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; (6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises; (7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; (8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; (9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; (10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; (11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; (12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against Lender, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, Releases or Remediation on, at or affecting the Premises.
Appears in 1 contract
Indemnity; Release. A. Initially capitalized terms in this Section that are not otherwise defined in this Agreement shall have the meanings set forth in the Environmental Indemnity Agreement. Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless each of the Indemnified Parties for, from and against any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement and damages of whatever kind or nature (including, without limitation, attorneys’ ' fees, court costs and other costs of defense) (collectively, “"Losses”) (excluding Losses suffered by an Indemnified Party directly arising out of such Indemnified Party’s 's gross negligence or willful misconduct; provided, however, that the term “"gross negligence” " shall not include gross negligence imputed as a matter of law to any of the Indemnified Parties solely by reason of Borrower’s 's interest in the Premises or Borrower’s 's failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents and the Development Documents), and costs of Remediation (whether or not performed voluntarily), engineers’ ' fees, environmental consultants’ ' fees, and costs of investigation (including but not limited to sampling, testing, and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas) imposed upon or incurred by or asserted against any Indemnified Parties, and directly or indirectly arising out of or in any way relating to any one or more of the following: :
(1) any presence of any Hazardous Materials or USTs in, on, above, or under the Premises introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(2) any past, present or Threatened Release in, on, above, under or from the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(3) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Premises of any Hazardous Materials or USTs at any time located in, under, on or above the Premises; ;
(4) any activity by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in connection with any actual or proposed Remediation of any Hazardous Materials or USTs at any time located in, under, on or above the Premises, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; ;
(5) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Premises or operations thereon, regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower, including but not limited to any failure by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises to comply with any order of any Governmental Authority in connection with any Environmental Laws; ;
(6) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrower; Premises;
(7) any administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Agreement; ;
(8) any past, present or threatened injury to, destruction of or loss of natural resources in any way connected with the Premises regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by BorrowerPremises, including but not limited to costs to investigate and assess such injury, destruction or loss; ;
(9) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises in arranging for disposal or treatment, or arranging with a transporter for transport for disposal or treatment, of Hazardous Materials or USTs owned or possessed by Borrower, any person or entity affiliated with Borrower or any tenant or other user, at any facility or incineration vessel owned or operated by another person or entity and containing such or similar Hazardous Materials; Materials or USTs;
(10) any acts of Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, in accepting any Hazardous Materials or USTs for transport to disposal or treatment facilities, incineration vessels or sites selected by Borrower, any person or entity affiliated with Borrower or any tenant or other user of the Premises, from which there is a Release, or a Threatened Release of any Hazardous Materials which causes the incurrence of costs for Remediation; ;
(11) any personal injury, wrongful death, or property damage arising under any statutory or common law or tort law theory regarding Hazardous Materials introduced to the Premises prior to or during the ownership of the Premises by Borrowertheory, including but not limited to damages assessed for the maintenance of a private or public nuisance or for the conducting of an abnormally dangerous activity on or near the Premises; or
(12) any disclosures of information, financial or otherwise, (x) made by (i) Lender or Lender’s employees, officers, agents and designees to Franchisor or any third party as contemplated by Section 11.R of this Agreement, or (ii) any employee, officer, agent or representative of Franchisor to Lender or any other Indemnified Party, or (y) obtained from any credit reporting agency with respect to Borrower, any guarantor of the Loan, any Affiliate of Borrower, any of the other Borrower Parties or any operator or lessee of the Premises; or (13) any misrepresentation or inaccuracy in any representation or warranty by Borrower or material breach or failure to perform by Borrower of any covenants or other obligations pursuant to this Agreement. Notwithstanding the above, Borrower shall not be liable for the acts of tenants or other users occurring after the Borrower no longer owns the Premises.
B. Excluding losses suffered by Lender directly arising out of Lender’s gross negligence or willful misconduct; provided, however, that the term “gross negligence” shall not include gross negligence imputed as a matter of law to Lender solely by reason of Borrower’s interest in the Premises or Borrower’s failure to act in respect of matters which are or were the obligation of Borrower under the Loan Documents, Borrower fully and completely releases, waives and covenants not to assert any claims, liabilities, actions, defenses, challenges, contests or other opposition against LenderLender and Environmental Insurer, however characterized, known or unknown, foreseen or unforeseen, now existing or arising in the future, relating to this Agreement and any Hazardous Materials, USTs, Releases or and/or Remediation on, at or affecting the Premises.
Appears in 1 contract
Samples: Loan Agreement (Eaco Corp)
