Operational indemnity. The Lessee shall indemnify and at all times keep indemnified each Indemnitee against, on an After-Tax Basis, all Losses which may at any time be incurred by that Indemnitee: (i) Subject to the next following paragraph, the Lessee hereby agrees to indemnify each Indemnitee against, and agrees to protect, save and keep harmless each of them from any and all Expenses imposed on, incurred by or asserted against any Indemnitee arising out of or directly resulting from (A) the operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, nonuse, modification, alteration, or sale of any Aircraft, any Airframe or any Engine, or any engine used in connection with such Airframe or any part of any of the foregoing by the Lessee, any lessee or any other Person whatsoever, whether or not such operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, nonuse, modification, alteration, or sale is in compliance with the terms of the Mortgage, including, without limitation, claims for death, personal injury or property damage or other loss or harm to any person whatsoever and claims relating to any laws, rules or regulations pertaining to such operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, non-use, modification, alteration, sale or return including environmental control, noise and pollution laws, rules or regulations; (B) the manufacture, design, purchase, acceptance, rejection, delivery, or condition of such Aircraft, such Airframe or any Engine, any engine used in connection with such Airframe, or any part of any of the foregoing including, without limitation, latent and other defects, whether or not discoverable, or trademark or copyright infringement; (C) any breach of or failure to perform or observe, or any other noncompliance with, any covenant or agreement to be performed, or other obligation of the Lessee under any of the Operative Documents to which it is a party, or the falsity of any representation or warranty of the Lessee in any of the Operative Documents to which it is a party; (D) the offer, sale and delivery by the Lessee or anyone acting on behalf of the Lessee of any Note or successor debt obligations issued in connection with the refunding or refinancing thereof (including, without limitation, any claim arising out of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Federal or state statute, law or regulation, or at common law or otherwise relating to securities (collectively “Securities Liabilities”)) (the indemnity provided in this clause (D) to extend also to any Person who controls an Indemnitee, its successors, assigns, employees, directors, officers, servants and agents within the meaning of Section 15 of the Securities Act of 1933, as amended); and (E) the transactions contemplated by the Operative Documents or any lease hereunder, any Lease Event of Default or the enforcement against the Lessee of any of the terms thereof (including, without limitation, Article V of the Mortgage).
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Samples: Aircraft Lease Agreement (Virgin America Inc.), Aircraft Lease Agreement (Virgin America Inc.)
Operational indemnity. The Lessee shall NAC 29 shall, within 5 Business Days of demand, indemnify and at each Shared Secured Party for all times keep indemnified each Indemnitee againstcosts, on an After-Tax Basis, all Losses which may at any time be losses or liabilities suffered or incurred by that IndemniteeShared Secured Party:
(a) relating to or, arising directly or indirectly from the purchase, sale, import, export, registration, ownership, leasing, sub leasing, operation, possession, redelivery, control, use storage, fuelling, xxxxxxx or supplying of any NAC 29 Aircraft Asset (including, separately, its constituent airframe, engines and parts);
(b) relating to, or arising directly or indirectly in any manner or for any cause or reason whatsoever out of, the condition, testing, delivery, design, manufacture, modification, repair, refurbishment, inspection, insurance, maintenance, overhaul, replacement, removal or disposal of any NAC 29 Aircraft Asset (including, separately, its constituent airframe, engines and parts) or relating to loss or destruction of or damage to any property or death or injury of or other loss of whatsoever nature suffered by any person caused by, relating to or arising from or out of (in each case whether directly or indirectly) any of the foregoing matters;
(c) due to any design, article or material in any NAC 29 Aircraft Asset (including, separately, its constituent airframe, engines and parts) or the operation or use thereof constituting an infringement of any patent or other intellectual property right or any other similar right whatsoever;
(d) in preventing or attempting to prevent the arrest, confiscation, seizure, taking in execution, impounding, forfeiture or detention of any NAC 29 Aircraft Asset (including, separately, its constituent airframe, engines and parts) or in securing the release of any NAC 29 Aircraft Asset (including, separately, its constituent airframe, engines and parts); or provided that, NAC 29 shall not be liable to pay to a Shared Secured Party any such costs, losses or liabilities to the extent that:
(i) Subject such costs, losses or liabilities are the result of the gross negligence or wilful misconduct of such Shared Secured Party;
(ii) such costs, losses or liabilities constitute ordinary and usual operating or overhead expenses of such Shared Secured Party or are costs, losses or liabilities which a Shared Secured Party has expressly agreed to bear pursuant to the next following paragraph, the Lessee hereby agrees to indemnify each Indemnitee against, and agrees to protect, save and keep harmless each of them from any and all Expenses imposed on, incurred by or asserted against any Indemnitee arising out of or directly resulting from (A) the operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, nonuse, modification, alteration, or sale of any Aircraft, any Airframe or any Engine, or any engine used in connection with such Airframe or any part terms of any of the foregoing by Debt Documents;
(iii) such costs, losses or liabilities are the Lessee, any lessee or any other Person whatsoever, whether or not such operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, nonuse, modification, alteration, or sale is in compliance with the terms result of the Mortgage, including, without limitation, claims for death, personal injury or property damage or other loss or harm to any person whatsoever and claims relating to any laws, rules or regulations pertaining to breach by such operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, non-use, modification, alteration, sale or return including environmental control, noise and pollution laws, rules or regulations; (B) the manufacture, design, purchase, acceptance, rejection, delivery, or condition of such Aircraft, such Airframe or any Engine, any engine used in connection with such Airframe, or any part Shared Secured Party of any of the foregoing including, without limitation, latent and other defects, whether or not discoverable, or trademark or copyright infringement; (C) any breach of or failure to perform or observe, or any other noncompliance with, any covenant or agreement to be performed, or other obligation of the Lessee its express obligations under any of the Operative Debt Documents (other than a breach which is attributable to which it is a party, or the falsity of breach by any representation or warranty member of the Lessee NAC Group of its obligations under that Debt Document); or
(iv) the relevant Shared Secured Party has recovered such costs, losses or liabilities by way of a recovery under any policies of insurance maintained in any respect of the Operative Documents to which it is a party; (D) the offer, sale and delivery by the Lessee or anyone acting on behalf of the Lessee of any Note or successor debt obligations issued in connection with the refunding or refinancing thereof (including, without limitation, any claim arising out of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Federal or state statute, law or regulation, or at common law or otherwise relating to securities (collectively “Securities Liabilities”)) (the indemnity provided in this clause (D) to extend also to any Person who controls an Indemnitee, its successors, assigns, employees, directors, officers, servants and agents within the meaning of Section 15 of the Securities Act of 1933, as amended); and (E) the transactions contemplated by the Operative Documents or any lease hereunder, any Lease Event of Default or the enforcement against the Lessee of any of the terms thereof (including, without limitation, Article V of the Mortgage)relevant NAC 29 Aircraft Asset.
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Samples: Intercreditor Agreement (NAC Aviation Colorado 1 LLC), Intercreditor Agreement (NAC Aviation 29 Designated Activity Co)
Operational indemnity. The Lessee shall indemnify and at all times keep indemnified each Indemnitee against, on an After-Tax Basis, all Losses which may at any time be incurred by that Indemnitee:
(i) Subject to the next following paragraph, the Lessee hereby agrees to indemnify each Indemnitee against, and agrees to protect, save and keep harmless each of them from any and all Expenses imposed on, incurred by or asserted against any Indemnitee arising out of or directly resulting from (A) the operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, nonuse, modification, alteration, or sale of any the Aircraft, any the Airframe or any Engine, or any engine used in connection with such the Airframe or any part of any of the foregoing by the Lessee, any lessee or any other Person whatsoever, whether or not such operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, nonuse, modification, alteration, or sale is in compliance with the terms of the Mortgage, including, without limitation, claims for death, personal injury or property damage or other loss or harm to any person whatsoever and claims relating to any laws, rules or regulations pertaining to such operation, possession, use, maintenance, overhaul, testing, registration, reregistration, delivery, non-delivery, lease, non-use, modification, alteration, sale or return including environmental control, noise and pollution laws, rules or regulations; (B) the manufacture, design, purchase, acceptance, rejection, delivery, or condition of such the Aircraft, such the Airframe or any Engine, any engine used in connection with such the Airframe, or any part of any of the foregoing including, without limitation, latent and other defects, whether or not discoverable, or trademark or copyright infringement; (C) any breach of or failure to perform or observe, or any other noncompliance with, any covenant or agreement to be performed, or other obligation of the Lessee under any of the Operative Documents to which it is a party, or the falsity of any representation or warranty of the Lessee in any of the Operative Documents to which it is a party; (D) the offer, sale and delivery by the Lessee or anyone acting on behalf of the Lessee of any Note or successor debt obligations issued in connection with the refunding or refinancing thereof (including, without limitation, any claim arising out of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Federal or state statute, law or regulation, or at common law or otherwise relating to securities (collectively “Securities Liabilities”)) (the indemnity provided in this clause (D) to extend also to any Person who controls an Indemnitee, its successors, assigns, employees, directors, officers, servants and agents within the meaning of Section 15 of the Securities Act of 1933, as amended); and (E) the transactions contemplated by the Operative Documents or any lease hereunder, any Lease Event of Default or the enforcement against the Lessee of any of the terms thereof (including, without limitation, Article V of the Mortgage).
(ii) Limitations on Indemnity. The foregoing indemnity shall not extend to any Expense of any Indemnitee to the extent attributable to one or more of the following: (1) acts or omissions involving the willful misconduct or gross negligence of such Indemnitee or any Person acting on behalf of such Indemnitee (other than gross negligence imputed to such Indemnitee solely by reason of its interest in the Aircraft); (2) the failure by such Indemnitee to perform or observe any agreement, covenant or condition in any of the Operative Documents applicable to it, including, without limitation, the creation or existence of a Security Trustee Lien or a Lender Lien (except to the extent such failure was caused directly by the failure of the Lessee to perform any of its obligations under the Operative Documents); (3) any representation or warranty by such Indemnitee in the Operative Documents or in connection therewith being incorrect in any material respect; (4) with respect to any Indemnitee, a disposition (voluntary or involuntary) by such Indemnitee of all or any part of such Indemnitee’s interest in the Airframe, any Engine or in any Operative Document other than during the continuance of an Event of Default; (5) other than amounts necessary to make payments on an after-tax basis, any Tax, or increase in Tax liability under any applicable law whether or not the Lessee is required to indemnify for such Tax pursuant to Schedule III to the Note Purchase Agreement; (6) acts or events occurring after (x) the Notes and all other amounts due to such Indemnitee under the Operative Documents have been paid in full or (y) the transfer of possession of the Aircraft pursuant to Article V of the Mortgage except to the extent that such Claim is attributable to acts occurring in connection with the exercise of remedies pursuant to Section 5.01 of the Mortgage following the occurrence and continuance of an Event of Default; (7) a failure on the part of the Security Trustee or either Agent to distribute in accordance with the Note Purchase Agreement or the Mortgage any amounts received and distributable by it thereunder; and (8) any Expense which is payable or borne by a Person other than the Lessee pursuant to any provision of any Operative Document.
(iii) Claims Against Indemnities. If a claim is made against an Indemnitee involving one or more Expenses and such Indemnitee has notice thereof, such Indemnitee shall promptly after receiving such notice give notice of such claim to the Lessee; provided that the failure to provide such notice shall not release the Lessee from any of its obligations to indemnify hereunder except to the extent that the Lessee is prejudiced as a result of the failure to give such notice in a timely fashion, and no payment by the Lessee to an Indemnitee pursuant to this Section 26(c) shall be deemed to constitute a waiver or release of any right or remedy which the Lessee may have against such Indemnitee for any actual damages as a result of the failure by such Indemnitee to give the Lessee such notice. The Lessee shall be entitled, at its sole cost and expense, acting through counsel reasonably acceptable to the respective Indemnitee, so long as the Lessee has acknowledged in writing its responsibility for such Expense hereunder (unless such Expense is covered by clause (ii) of this Section 26(c), except that such acknowledgment does not apply if the decision of a court or arbitrator provides that the Lessee is not liable hereunder), (A) in any judicial or administrative proceeding that involves solely a claim for one or more Expenses, to assume responsibility for and control thereof, (B) in any judicial or administrative proceeding involving a claim for one or more Expenses and other claims related or unrelated to the transactions contemplated by the Operative Documents, to assume responsibility for and control of such claim for Expenses to the extent that the same may be and is severed from such other claims (and such Indemnitee shall use its reasonable efforts to obtain such severance), and (C) in any other case, to be consulted by such Indemnitee with respect to judicial proceedings subject to the control of such Indemnitee and to be allowed, at the Lessee’s sole expense, to participate therein. The Indemnitee may participate at its own expense and with its own counsel in any judicial proceeding controlled by the Lessee pursuant to the preceding provisions. Notwithstanding any of the foregoing, the Lessee shall not be entitled to assume responsibility for and control of any such judicial or administrative proceedings if any Lease Event of Default shall have occurred and be continuing, if such proceedings will involve a material risk of the sale, forfeiture or loss of the Aircraft unless the Lessee shall have posted a bond or other security reasonably satisfactory to the relevant Indemnitee with respect to such risk or if such proceedings could entail any risk of criminal liability being imposed on such Indemnitee.
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